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G.R. No. 145368            April 12, 2002

SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as
Ombudsman, respondent.

KAPUNAN, J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative

Order No. 223 "constituting a Committee for the preparation of the National
Centennial Celebration in 1998." The Committee was mandated "to take
charge of the nationwide preparations for the National Celebration of the
Philippine Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."1

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,

"reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1988." It renamed the Committee as the "National
Centennial Commission." Appointed to chair the reconstituted Commission
was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal
and Corazon C. Aquino were named Honorary Chairpersons.2

Characterized as an "i body," the existence of the Commission "shall

terminate upon the completion of all activities related to the Centennial
Celebrations."3 Like its predecessor Committee, the Commission was tasked
to "take charge of the nationwide preparations for the National Celebration
of the Philippine Centennial of the Declaration of Philippine Independence
and the Inauguration of the Malolos Congress."

Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to "prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6) months
from the effectivity of" the Executive Order.

E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and

administrative staff support by a Secretariat to be composed of, among
others, detailed personnel from the Presidential Management Staff, the
National Commission for Culture and the Arts, and the National
Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be

drawn from the Department of Tourism and the president’s Contingent
Fund, in an amount to be recommended by the Commission, and
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approved by the President. Appropriations for succeeding years shall

be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo ’98

Corporation (Expocorp) was created.4 Petitioner was among the nine (9)
Expocorp incorporators, who were also its first nine (9) directors. Petitioner
was elected Expocorp Chief Executive Officer.

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege

speech in the Senate denouncing alleged anomalies in the construction and
operation of the Centennial Exposition Project at the Clark Special
Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Coseteng’s privilege speech was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.

On February 24, 1999, President Joseph Estrada issued Administrative

Order No. 35, creating an ad hoc and independent citizens’ committee to
investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator Rene
A.V. Saguisag was appointed to chair the Committee.

On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated February
26, 1999. Among the Committee’s recommendations was "the prosecution
by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of
EXPOCORP for violating the rules on public bidding, relative to the award of
centennial contracts to AK (Asia Construction & Development Corp.); for
exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to
AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating
in the scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in violation… of
the anti-graft law."5

Later, on November 5, 1999, the Saguisag Committee issued its own report.
It recommended "the further investigation by the Ombudsman, and
indictment, in proper cases of," among others, NCC Chair Salvador H.
Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation
to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.

The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office
of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation
Report, recommending:
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1. that a formal complaint be filed and preliminary investigation be

conducted before the Evaluation and Preliminary Investigation Bureau
(EPIB), Office of the Ombudsman against former NCC and
EXPOCORP chair Salvador H. Laurel, former EXPOCORP President
Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of
Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594
and COA Rules and Regulations;

2. That the Fact Finding and Intelligence Bureau of this Office, act as
the nominal complainant.6

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the

Evaluation and Preliminary Investigation Bureau, directed petitioner to
submit his counter-affidavit and those of his witnesses.

On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.

In an Order dated June 13, 2000, the Ombudsman denied petitioner’s

motion to dismiss.

On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000
Order but the motion was denied in an Order dated October 5, 2000.

On October 25, 2000, petitioner filed the present petition for certiorari.

On November 14, 2000, the Evaluation and Preliminary Investigation

Bureau issued a resolution finding "probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEÑA before the
Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No.
3019, in relation to Republic Act No. 1594." The resolution also directed that
an information for violation of the said law be filed against Laurel and Peña.
Ombudsman Aniano A. Desierto approved the resolution with respect to
Laurel but dismissed the charge against Peña.

In a Resolution dated September 24, 2001, the Court issued a temporary

restraining order, commanding respondents to desist from filing any
information before the Sandiganbayan or any court against petitioner for
alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.

On November 14, 2001, the Court, upon motion of petitioner, heard the
parties in oral argument.

Petitioner assails the jurisdiction of the Ombudsman on the ground that he

is not a public officer because:

A.
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EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL

WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.

B.

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC

OFFICE.

C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP

WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT
& CORRUPT PRACTICES ACT.7

In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs.

Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman
was limited to cases cognizable by the Sandiganbayan, i.e., over public
officers of Grade 27 and higher. As petitioner’s position was purportedly not
classified as Grade 27 or higher, the Sandiganbayan and, consequently, the
Ombudsman, would have no jurisdiction over him.

This last contention is easily dismissed. In the Court’s decision in Uy, we

held that "it is the prosecutor, not the Ombudsman, who has the authority to
file the corresponding information/s against petitioner in the regional trial
court. The Ombudsman exercises prosecutorial powers only in cases
cognizable by the Sandiganbayan."

In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority

of the State and regular provincial and city prosecutors under the
Department of Justice to have control over prosecution of cases falling
within the jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases rightfully
falling within the jurisdiction of the Sandiganbayan under Section 15 (1)
of R.A. 6770 ("An Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for other purposes")
which vests upon the Ombudsman "primary jurisdiction over cases
cognizable by the Sandiganbayan…" And this is further buttressed by
Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the
Special Prosecutor shall have the power to "conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan." Thus, repeated references to the Sandiganbayan’s
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jurisdiction clearly serve to limit the Ombudsman’s and Special

Prosecutor’s authority to cases cognizable by the Sandiganbayan.
[Emphasis in the original.]

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

The power to investigate and to prosecute granted by law to the

Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient. The law does not
make a distinction between cases cognizable by the Sandiganbayan
and those cognizable by regular courts. It has been held that the
clause "any illegal act or omission of any public official" is broad
enough to embrace any crime committed by a public officer or
employee.

The reference made by RA 6770 to cases cognizable by the

Sandiganbayan, particularly in Section 15(1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as
confining the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over

cases cognizable by the Sandiganbayan. The law defines such primary
jurisdiction as authorizing the Ombudsman "to take over, at any stage,
from any investigatory agency of the government, the investigation of
such cases." The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his
primary jurisdiction over cases cognizable by the Sandiganbayan is not
incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature
to the Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not

be equated with the limited authority of the Special Prosecutor under
Section 11 of RA 6770. The Office of the Special Prosecutor is merely
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a component of the Office of the Ombudsman and may only act under
the supervision and control and upon authority of the Ombudsman. Its
power to conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints against
officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize
the personnel of his office and/or designate any fiscal, state prosecutor
or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain
cases. Those designated or deputized to assist him work under his
supervision and control. The law likewise allows him to direct the
Special Prosecutor to prosecute cases outside the Sandiganbayan’s
jurisdiction in accordance with Section 11 (4c) of RA 6770.

The prosecution of offenses committed by public officers and

employees is one of the most important functions of the Ombudsman.
In passing RA 6770, the Congress deliberately endowed the
Ombudsman with such power to make him a more active and effective
agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent.
[Emphasis in the original.]

Having disposed of this contention, we proceed to the principal grounds

upon which petitioner relies. We first address the argument that petitioner,
as Chair of the NCC, was not a public officer.

The Constitution10 describes the Ombudsman and his Deputies as

"protectors of the people," who "shall act promptly on complaints filed in any
form or manner against public officials or employees of the government, or
any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations." Among the awesome powers, functions,
and duties vested by the Constitution11 upon the Office of the Ombudsman
is to "[i]nvestigate… any act or omission of any public official, employee,
office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient."

The foregoing constitutional provisions are substantially reproduced in R.A.

No. 6770, otherwise known as the "Ombudsman Act of 1989." Sections 13
and 15(1) of said law respectively provide:

SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors

of the people shall act promptly on complaints file in any form or
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manner against officers or employees of the Government, or of any

subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the people.

SEC. 15. Powers, Functions and Duties. – The Office of the

Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable
by the Sandiganbayan and, in the exercise of this primary jurisdiction,
it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;

x x x.

The coverage of the law appears to be limited only by Section 16, in relation
to Section 13, supra:

SEC 16. Applicability. – The provisions of this Act shall apply to all

kinds of malfeasance, misfeasance and non-feasance that have been
committed by any officer or employee as mentioned in Section 13
hereof, during his tenure of office.

In sum, the Ombudsman has the power to investigate any malfeasance,

misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations.12

Neither the Constitution nor the Ombudsman Act of 1989, however, defines
who public officers are. A definition of public officers cited in
jurisprudence13 is that provided by Mechem, a recognized authority on the
subject:

A public office is the right, authority and duty, created and conferred by
law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised
by him for the benefit of the public. The individual so invested is a
public officer.14

The characteristics of a public office, according to Mechem, include the

delegation of sovereign functions, its creation by law and not by contract, an
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oath, salary, continuance of the position, scope of duties, and the

designation of the position as an office.15

Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions; (2)
salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.

Mechem describes the delegation to the individual of some of the sovereign

functions of government as "[t]he most important characteristic" in
determining whether a position is a public office or not.

The most important characteristic which distinguishes an office from an

employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign
functions of government, to be exercised by him for the benefit of the
public; – that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of
this nature, the individual is not a public officer.16

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions
that can be described as legislative or judicial. May the functions of the NCC
then be described as executive?

We hold that the NCC performs executive functions. The executive power
"is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their
due observance."17 The executive function, therefore, concerns the
implementation of the policies as set forth by law.

The Constitution provides in Article XIV (Education, Science and

Technology, Arts, Culture, and Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The
State shall conserve, promote, and popularize the nation’s historical
and cultural heritage and resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:

Whereas, the birth of the Republic of the Philippines is to be celebrated

in 1998, and the centennial presents an important vehicle for fostering
nationhood and a strong sense of Filipino identity;
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Whereas, the centennial can effectively showcase Filipino heritage and

thereby strengthen Filipino values;

Whereas, the success of the Centennial Celebrations may be insured

only through long-range planning and continuous developmental
programming;

Whereas, the active participation of the private sector in all areas of

special expertise and capability, particularly in communication and
information dissemination, is necessary for long-range planning and
continuous developmental programming;

Whereas, there is a need to create a body which shall initiate and

undertake the primary task of harnessing the multisectoral components
from the business, cultural, and business sectors to serve as effective
instruments from the launching and overseeing of this long-term
project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the "need to strengthen the said Committee to
ensure a more coordinated and synchronized celebrations of the Philippine
Centennial and wider participation from the government and non-
government or private organizations." It also referred to the "need to
rationalize the relevance of historical links with other countries."

The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with
the following functions:

(a) To undertake the overall study, conceptualization, formulation

and implementation of programs and projects on the utilization of
culture, arts, literature and media as vehicles for history, economic
endeavors, and reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National
Exposition ’98 within Metro Manila, the original eight provinces, and
Clark Air Base as its major venues;

(b) To act as principal coordinator for all the activities related to

awareness and celebration of the Centennial;

(c) To serve as the clearing house for the preparation and

dissemination of all information about the plans and events for the
Centennial Celebrations;
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(d) To constitute working groups which shall undertake the

implementation of the programs and projects;

(e) To prioritize the refurbishment of historical sites and structures

nationwide. In this regard, the Commission shall formulate schemes
(e.g. lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the
historical sites and structures;

(f) To call upon any government agency or instrumentality and

corporation, and to invite private individuals and organizations to assist
it in the performance of its tasks; and,

(g) Submit regular reports to the President on the plans, programs,

projects, activities as well as the status of the preparations for the
Celebration.18

It bears noting the President, upon whom the executive power is

vested,19 created the NCC by executive order. Book III (Office of the
President), Chapter 2 (Ordinance Power), Section 2 describes the nature of
executive orders:

SEC. 2. Executive Orders. – Acts of the President providing for rules of

a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the country’s economic
development, especially in Central Luzon. Petitioner himself admitted as
much in the oral arguments before this Court:

MR. JUSTICE REYNATO S. PUNO:

And in addition to that expounded by Former President Ramos,

don’t you agree that the task of the centennial commission was
also to focus on the long term over all socio economic
development of the zone and Central Luzon by attracting
investors in the area because of the eruption of Mt. Pinatubo.

FORMER VICE PRESIDENT SALVADOR H. LAUREL:

I am glad Your Honor touched on that because that is something I

wanted to touch on by lack of material time I could not but that is
a very important point. When I was made Chairman I wanted the
Expo to be in Batangas because I am a Batangeño but President
Ramos said Mr. Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt. Pinatubo let us try to
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catalize [sic] economic recovery in that area by putting this Expo

in Clark Field and so it was done I agreed and Your Honor if I may
also mention we wanted to generate employment aside from
attracting business investments and employment. And the
Estrada administration decided to junk this project there 48, 40
thousand people who lost job, they were employed in Expo. And
our target was to provide 75 thousand jobs. It would have really
calibrated, accelerated the development of Central Luzon. Now, I
think they are going back to that because they had the airport and
there are plan to revive the Expo site into key park which was the
original plan.

There can hardly be any dispute that the promotion of industrialization and
full employment is a fundamental state policy.20

Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the
holding by a municipality of a town fiesta is a proprietary rather than a
governmental function. Petitioner argues that the "holding of a nationwide
celebration which marked the nation’s 100th birthday may be likened to a
national fiesta which involved only the exercise of the national government’s
proprietary function."22 In Torio, we held:

[Section 2282 of the Chapter on Municipal Law of the Revised

Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate a
religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of
the public performed in pursuance of a policy of the state. The mere
fact that the celebration, as claimed, was not to secure profit or gain
but merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source
of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like
which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to
be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government
in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
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Torio, however, did not intend to lay down an all-encompassing doctrine.

Note that the Court cautioned that "there can be no hard and fast rule for
purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive." Thus, in footnote 15 of Torio, the Court,
citing an American case, illustrated how the "surrounding circumstances
plus the political, social, and cultural backgrounds" could produce a
conclusion different from that in Torio:

We came across an interesting case which shows that surrounding

circumstances plus the political, social, and cultural backgrounds may
have a decisive bearing on this question. The case of Pope v. City of
New Haven, et al. was an action to recover damages for personal
injuries caused during a Fourth of July fireworks display resulting in the
death of a bystander alleged to have been caused by defendants’
negligence. The defendants demurred to the complaint invoking the
defense that the city was engaged in the performance of a public
governmental duty from which it received no pecuniary benefit and for
negligence in the performance of which no statutory liability is
imposed. This demurrer was sustained by the Superior Court of New
Haven Country. Plaintiff sought to amend his complaint to allege that
the celebration was for the corporate advantage of the city. This was
denied. In affirming the order, the Supreme Court of Errors of
Connecticut held inter alia:

Municipal corporations are exempt from liability for the negligent

performance of purely public governmental duties, unless made liable
by statute….

A municipality corporation, which under permissive authority of its

charter or of statute, conducted a public Fourth of July celebration,
including a display of fireworks, and sent up a bomb intended to
explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this]
excerpt:

"July 4th, when that date falls upon Sunday, July 5th, is made a public
holiday, called Independence Day, by our statutes. All or nearly all of
the other states have similar statutes. While there is no United States
statute making a similar provision, the different departments of the
government recognize, and have recognized since the government
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was established, July 4th as a national holiday. Throughout the country

it has been recognized and celebrated as such. These celebrations,
calculated to entertain and instruct the people generally and to arouse
and stimulate patriotic sentiments and love of country, frequently take
the form of literary exercises consisting of patriotic speeches and the
reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and
followed by fireworks. That such celebrations are of advantage to the
general public and their promotion a proper subject of legislation can
hardly be questioned. x x x"

Surely, a town fiesta cannot compare to the National Centennial

Celebrations. The Centennial Celebrations was meant to commemorate the
birth of our nation after centuries of struggle against our former colonial
master, to memorialize the liberation of our people from oppression by a
foreign power. 1998 marked 100 years of independence and sovereignty as
one united nation. The Celebrations was an occasion to reflect upon our
history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle
for fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen Filipino
values." The significance of the Celebrations could not have been lost on
petitioner, who remarked during the hearing:

Oh, yes, certainly the State is interested in the unity of the people, we
wanted to rekindle the love for freedom, love for country, that is the
over-all goal that has to make everybody feel proud that he is a
Filipino, proud of our history, proud of what our forefather did in their
time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public

office, and petitioner, as its Chair, is a public officer.

That petitioner allegedly did not receive any compensation during his tenure
is of little consequence. A salary is a usual but not a necessary criterion for
determining the nature of the position. It is not conclusive. The salary is a
mere incident and forms no part of the office. Where a salary or fees is
annexed, the office is provided for it is a naked or honorary office, and is
supposed to be accepted merely for the public good.23 Hence, the office of
petitioner as NCC Chair may be characterized as an honorary office, as
opposed to a lucrative office or an office of profit, i.e., one to which salary,
compensation or fees are attached.24 But it is a public office, nonetheless.

Neither is the fact that the NCC was characterized by E.O. No. 128 as an
"ad-hoc body" make said commission less of a public office.
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The term office, it is said, embraces the idea of tenure and duration,
and certainly a position which is merely temporary and local cannot
ordinarily be considered an office. "But," says Chief Justice Marshall,
"if a duty be a continuing one, which is defined by rules prescribed by
the government and not by contract, which an individual is appointed
by government to perform, who enters on the duties pertaining to his
station without any contract defining them, if those duties continue
though the person be changed, -- it seems very difficult to distinguish
such a charge or employment from an office of the person who
performs the duties from an officer."

At the same time, however, this element of continuance can not be

considered as indispensable, for, if the other elements are present "it
can make no difference," says Pearson, C.J., "whether there be but
one act or a series of acts to be done, -- whether the office expires as
soon as the one act is done, or is to be held for years or during good
behavior."25

Our conclusion that petitioner is a public officer finds support in In Re

Corliss.26 There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an "office of
trust" as to disqualify its holder as elector of the United States President and
Vice-President. (Under Article II of the United States Constitution, a person
holding an office of trust or profit under the United States is disqualified from
being appointed an elector.)

x x x. We think a Commissioner of the United States Centennial

Commission holds an office of trust under the United States, and that
he is therefore disqualified for the office of elector of President and
Vice-President of the United States.

The commission was created under a statute of the United States

approved March 3, 1871. That statute provides for the holding of an
exhibition of American and foreign arts, products, and manufactures,
"under the auspices of the government of the United States," and for
the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, "whose
functions shall continue until close of the exhibition," and "whose duty it
shall be to prepare and superintend the execution of the plan for
holding the exhibition." Under the statute the commissioners are
appointed by the President of the United States, on the nomination of
the governor of the States and Territories respectively. Various duties
were imposed upon the commission, and under the statute provision
was to be made for it to have exclusive control of the exhibit before the
President should announce, by proclamation, the date and place of
opening and holding the exhibition. By an act of Congress approved
 15

June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called
"The Centennial Board of Finance," to cooperate with the commission
and to raise and disburse the funds. It was to be organized under the
direction of the commission. The seventh section of the act provides
"that the grounds for exhibition shall be prepared and the buildings
erected by the corporation, in accordance with plans which shall have
been adopted by the United States Centennial Commission; and the
rules and regulations of said corporation, governing rates for entrance
and admission fees, or otherwise affecting the rights, privileges, or
interests of the exhibitors, or of the public, shall be fixed and
established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said
grounds or buildings, or relating to said exhibition or celebration, shall
be made without the consent of the United States Centennial
Commission, and said commission shall have power to control,
change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums." The tenth section of the act
provides that "it shall be the duty of the United States Centennial
Commission to supervise the closing up of the affairs of said
corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial
exhibition."

It is apparent from this statement, which is but partial, that the duties
and functions of the commission were various, delicate, and important;
that they could be successfully performed only by men of large
experience and knowledge of affairs; and that they were not merely
subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons
performing such duties and exercising such functions, in pursuance of
statutory direction and authority, are not to be regarded as mere
employees, agents, or committee men, but that they are, properly
speaking, officers, and that the places which they hold are offices. It
appears, moreover, that they were originally regarded as officers by
Congress; for the act under which they were appointed declares,
section 7, that "no compensation for services shall be paid to the
commissioners or other officers, provided for in this act, from the
treasury of the United States." The only other officers provided for were
the "alternates" appointed to serve as commissioners when the
commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions
and is, therefore, a public office, we need no longer delve at length on the
issue of whether Expocorp is a private or a public corporation. Even
 16

assuming that Expocorp is a private corporation, petitioner’s position as

Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of
the NCC. Consequently, his acts or omissions as CEO of Expocorp must be
viewed in the light of his powers and functions as NCC Chair.27

Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.

Respondent seeks to charge petitioner with violation of Section 3 (e) of said

law, which reads:

SEC. 3. Corrupt practices of public officers. – In addition to acts or

omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.

A "public officer," under R.A. No. 3019, is defined by Section 2 of said law
as follows:

SEC. 2. Definition of terms. – As used in this Act, the term –

xxx

(b) "Public officer" includes elective and appointive officials and

employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even
nominal, from the government as defined in the preceding paragraph.
[Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a "public officer" is
expressly limited to the application of R.A. No. 3019. Said definition does
not apply for purposes of determining the Ombudsman’s jurisdiction, as
defined by the Constitution and the Ombudsman Act of 1989.
 17

Moreover, the question of whether petitioner is a public officer under the

Anti-Graft and Corrupt Practices Act involves the appreciation of evidence
and interpretation of law, matters that are best resolved at trial.

To illustrate, the use of the term "includes" in Section 2 (b) indicates that the
definition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just
one of several laws that define "public officers." Article 203 of the Revised
Penal Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election or

appointment by competent authority, takes part in the performance of
public functions in the Government of Philippines, or performs in said
Government or in any of its branches public duties as an employee,
agent or subordinate official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of

1987,29 on the other hand, states:

Officer – as distinguished from "clerk" or "employee", refers to a person

whose duties not being of a clerical or manual nature, involves the
exercise of discretion in the performance of the functions of the
government. When used with reference to a person having authority to
do a particular act or perform a particular person in the exercise of
governmental power, "officer" includes any government employee,
agent or body having authority to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code
of Conduct and Ethical Standards for Public Officials and Employees), one
may be considered a "public official" whether or not one receives
compensation, thus:

"Public Officials" include elective and appointive officials and

employees, permanent or temporary, whether in the career or non-
career service including military and police personnel, whether or not
they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive,
the term "compensation," which is not defined by said law, has many
meanings.

Under particular circumstances, "compensation" has been held to

include allowance for personal expenses, commissions, expenses,
fees, an honorarium, mileage or traveling expenses, payments for
services, restitution or a balancing of accounts, salary, and wages.30
 18

How then is "compensation," as the term is used in Section 2 (b) of R.A. No.
3019, to be interpreted?

Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received
any allowance, fee, honorarium, or some other form of compensation.
Notably, under the by-laws of Expocorp, the CEO is entitled to per
diems and compensation.31 Would such fact bear any significance?

Obviously, this proceeding is not the proper forum to settle these issues lest
we preempt the trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary injunction

issued in the Court’s Resolution dated September 24, 2001 is hereby
LIFTED.

SO ORDERED.

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
 19

WHEREAS, Section 17 of Book V of Executive Order 292

provides that ". . . as an independent constitutional body, the
Commission may effect changes in the organization as the need
arises;"

WHEREAS, the Commission finds it imperative to effect changes

in the organization to streamline its operations and improve
delivery of public service;

WHEREAS, the Commission finds it necessary to immediately

effect changes in the organization of the Central Offices in view of
the need to implement new programs in lieu of those functions
which were transferred to the Regional Offices;

WHEREFORE, foregoing premises considered, the Commission

hereby RESOLVES to effect the following changes in its
organization, specifically in the Central Offices:

1. The OCSS [Office of Career Systems and Standards], OPIA

[Office of Personnel Inspection and Audit] and OPR [Office of
Personnel Relations] are merged to form the Research and
Development Office (RDO).

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

renamed Human Resource Development Office (HRDO).

3. The following functions and the personnel assigned to the unit

performing said functions are hereby transferred to HRDO:

a. Administration of the Honor and Awards program

under OCSS;

b. Registration and Accreditation of Unions under OPR;

and

c. Accreditation of Agencies to take final action on

appointments under OPIA.

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

Management Information Office (MIO).

5. The Information technology functions of OPM and the

personnel assigned to the unit are transferred to MIO.

6. The following functions of OPM and the personnel assigned to

the unit performing said functions are hereby transferred to the
Office of the Executive Director:
 20

a. Financial Audit and Evaluation;

b. Internal Management and Improvement;

c. Research and Statistics; and

d. Planning and Programming.

7. The library service and its personnel under OCPR are

transferred to the Central Administrative Office.

8. The budget allocated for the various functions shall be

transferred to the Offices where the functions are transferred.
Records, fixtures and equipment that go with the functions shall
be moved to where the functions are transferred.

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

The changes in the organization and in operations shall take

place before end of July 1994.

Done in Quezon City, July 07, 1994.

(Signed)
Patricia A. Sto. Tomas
Chairman

(Signed) Did not participate

Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner

Attested by:
(Signed)
Carmencita Giselle B. Dayson
Board Secretary V 2

During the general assembly of officers and employees of the Commission

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

Petitioners then instituted this Petition. In a Resolution dated 23 August

1994, the Court required public respondents to file a Comment on the
Petition. On 21 September 1994, petitioners filed an Urgent Motion for
Issuance of a Temporary Restraining Order, alleging that petitioners had
received Office Orders from the Commission assigning petitioner Fernandez
to Region V at Legaspi City and petitioner de Lima to Region III in San
 21

Fernando, Pampanga and praying that public respondents be restrained

from enforcing these Office Orders. The Court, in a Resolution dated 27
September 1994, granted this Motion and issued the Temporary Restraining
Order prayed for by petitioners.

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

The principal issues raised in this Petition are the following:

(1) Whether or not the Civil Service Commission had legal

authority to issue Resolution No. 94-3710 to the extent it merged
the OCSS [Office of Career Systems and Standards], the OPIA
[Office of Personnel Inspection and Audit] and the OPR [Office of
Personnel Relations], to form the RDO [Research and
Development Office]; and

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

constitutional right to security of tenure.

I.

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

Sec. 16. Offices in the Commission — 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 — . . .
 22

(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.
 23

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
 24

staff may be brought closer physically to the government employees that

they are mandated to serve. In the past, its functions had been centralized
in the Head Office of the Commission in Metropolitan Manila and Civil
Service employees all over the country were compelled to come to Manila
for the carrying out of personnel transactions. Upon the other hand, the
dispersal of the functions of the Commission to the Regional Offices and the
Field Offices attached to various governmental agencies throughout the
country makes possible the implementation of new programs of the
Commission at its Central Office in Metropolitan Manila.

The Commission's Office Order assigning petitioner de Lima to the CSC

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

It thus appears to the Court that the Commission was moved by quite
legitimate considerations of administrative efficiency and convenience in
promulgating and implementing its Resolution No. 94-3710 and in assigning
petitioner Salvador C. Fernandez to the Regional Office of the Commission
in Region V in Legaspi City and petitioner Anicia M. de Lima to the
Commission's Regional Office in Region III in San Fernando, Pampanga. It
is also clear to
the Court that the changes introduced and formalized through Resolution
No. 94-3710 — re-naming of existing Offices; re-arrangement of the
groupings of Divisions and Sections composing particular Offices; re-
allocation of existing functions (and related personnel; budget, etc.) among
the re-arranged Offices — are precisely the kind of internal changes which
are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the
1987 Revised Administrative Code), quoted above, as "chances in the
organization" of the Commission.
 25

Petitioners argue that Resolution No. 94-3710 effected the "abolition" of

public offices, something which may be done only by the same legislative
authority which had created those public offices in the first place.

The Court is unable, in the circumstances of this case, to accept this

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

as the central personnel agency of the Government [to] establish

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

II.
 26

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
 27

Development Office (RDO) in the Central Office of the Commission in

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

Secondly, the above conclusion is compelled not only by the statutory

provisions relevant in the instant case, but also by a long line of cases
decided by this Court in respect of different agencies or offices of
government.

In one of the more recent of these cases, Department of Education Culture

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

The aforequoted provision of Republic Act No. 4670 particularly

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

The rule pursued by plaintiff only goes so far as

the appointed indicates a specification. Otherwise, the
constitutionally ordained security of tenure cannot
shield her. In appointments of this nature, this Court
has consistently rejected the officer's demand to remain
— even as public service dictates that a transfer be
made — in a particular station. Judicial attitude toward
transfers of this nature is expressed in the following
statement in Ibañez, et al. vs. Commission on
Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002 [1967]);
 28

That security of tenure is an essential and

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

The appointment of Navarro as principal does not refer to any

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

Plaintiff's confident stride falters. She took too loose a

view of the applicable jurisprudence. Her refuge behind
the mantle of security of tenure guaranteed by the
Constitution is not impenetrable. She proceeds upon
the assumption that she occupies her station in
Sinalang Elementary School by appointment. But her
first appointment as Principal merely reads thus: "You
are hereby appointed a Principal (Elementary School)
in the Bureau of Public Schools, Department of
 29

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
 30

Elections," without any intimation to what city, municipality or municipal

district they had been appointed as such. 15 The Court held that since
petitioners "were not appointed to, and consequently not entitled to any
security of tenure or permanence in, any specific station," "on general
principles, they [could] be transferred as the exigencies of the service
required," and that they had no right to complain against any change in
assignment. The Court further held that assignment to a particular station
after issuance of the appointment was not necessary to complete such
appointment:

. . . . We cannot subscribe to the theory that an assignment to a

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

The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare

Office Incharge, Division of Urban, Rural and Community Administration,
Social Welfare Administration." She was assigned as Social Welfare
Incharge of the Mountain Province, by an office order of the Administrator,
Social Welfare Administration. After a little more than a year; petitioner was
assigned elsewhere and respondent Ganaden transferred to petitioner's first
station in Baguio City. The Court ruled that petitioner was not entitled to
remain in her first station, In Jaro v. Hon. Valencia, et al., 18 petitioner Dr.
Jaro had been appointed "Physician in the Municipal Maternity and Charity
Clinics, Bureau of Hospitals." He was first assigned to the Municipal
Maternity and Charity Clinics in Batulati, Davao, and later to the
 31

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. . . .
 32

5. The next point of inquiry is whether or not Administrative Order

77 would stand the test of validity vis-a-vis the principles just
enunciated.

xxx xxx xxx

To be stressed at this point, however, is that the appointment of

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

For all the foregoing we conclude that the reassignment of petitioners

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

WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with

Prayer for Writ of Preliminary Injunction or Temporary Restraining Order is
hereby DISMISSED. The Temporary Restraining Order issued by this Court
on 27 September 1994 is hereby LIFTED. Costs against petitioners.

SO ORDERED.

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
 33

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. 3 Red 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.
 34

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
 35

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.
 36

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:

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
 37

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.
 38

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

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. 673314 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
 39

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. 19 If 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 —
 40

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
 41

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 government. 23 Reliance 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 In Cabungcal 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
 42

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
 43

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.

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
 44

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.

G.R. No. 120295 June 28, 1996

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
 45

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,1 promulgated on December 19, 19952 and another Resolution of
the Comelec en banc promulgated February 23, 19963 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 petition4 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 Resolution5 granting the petition with the
following disposition6:

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 banc7 affirmed the aforementioned Resolution of the Second
Division.

The Provincial Board of Canvassers completed the canvass of the election

returns and a Certificate of Votes8 dated 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

 46

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)

petition9 praying for his proclamation as the duly-elected Governor of
Sorsogon.

In an order10 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 Resolution13 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.
 47

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 alia directed 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
 48

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. Resolution16 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. Resolution17 of the Comelec en banc, promulgated on May 11,

1995; and

3. Resolution18 of the Comelec en banc, promulgated also on May

11, 1995 suspending the proclamation of, among others, Frivaldo.

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.
 49

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 199119 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,
 50

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.

x x x           x x x          x x x

Inasmuch as Frivaldo had been declared by this Court20 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. 10465422 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" 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
 51

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, 198724 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
 52

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 Manifestation28 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.
72529 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 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.
 53

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. 10465430 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
day32 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
 54

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
argument34 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 law35 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 the citizenship 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
 55

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."3 7

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
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
 56

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 remedy and
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 General44 argues:

 57

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.

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.
 58

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.4 7

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.
 59

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 or
abuse.52

The Second Issue: Is Lack of Citizenship

a Continuing Disqualification?

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its
 60

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."

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 Jurisdiction

Over The Petition in SPC No. 95-317
 61

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 Constitution57 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
 62

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 Labo62 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 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:
 63

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 the

Election 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 banc63 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
 64

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 of
Mr. 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 may decide such
petition. And we hold that it may be decided even after the fifteen
day period mentioned in Section 78. Here, we rule that a
 65

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 elective local 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
 66

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.

EPILOGUE

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
 67

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:

. . . (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 antagonistic68 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
 68

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.
 69

G.R. No. 146875             July 14, 2003

KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S.

MENDOZA, JORGE BANAL, Chairman of the Special Investigation
Committee on Administrative Cases Against Elected Barangay
Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City
Mayor of Quezon City, petitioners,
vs.
BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.

YNARES-SANTIAGO, J.:

Is the taking of an oath of office anew by a duly proclaimed but

subsequently unseated local elective official a condition sine qua non to the
validity of his re-assumption in office where the Commission on Elections
(COMELEC) orders the relinquishment of the contested position?

This is the legal question raised in this petition under Rule 45 of the 1997
Rules of Civil Procedure, assailing the November 13, 2000 Summary
Judgment1 of the Regional Trial Court of Quezon City, Branch 77, which set
aside the decision of the City Council of Quezon City finding respondent
Barangay Captain Manuel D. Laxina guilty of grave misconduct.

On May 27, 1997, respondent took his oath and thereafter assumed office
as the duly proclaimed and elected barangay captain of Barangay Batasan
Hills, Quezon City, in the 1997 Barangay Elections. Meanwhile, Roque
Fermo, his rival candidate, filed an election protest with the Metropolitan
Trial Court of Quezon City, Branch 40. On January 18, 1999, Fermo was
declared as the winner in the Barangay Elections. Respondent filed a notice
of appeal with the COMELEC while Fermo filed a motion for execution
pending appeal.

On January 20, 1999, an order was issued by the trial court granting the
motion for execution pending appeal. Hence, respondent vacated the
position and relinquished the same to Fermo. Thereafter, respondent filed a
petition with the COMELEC questioning the January 20, 1999 order of the
trial court. On September 16, 1999, the COMELEC issued a
resolution2 annulling the order which granted the execution of the decision
pending appeal on the ground that there existed no good reasons to justify
execution. The dispositive portion thereof reads:

WHEREFORE, in view of all the foregoing, the Commission En

Banc GRANTS the petition. Accordingly, the January 20, 1999 Order
of the Court a quo is hereby ANNULLED. Private respondent ROQUE
FERMO is hereby ORDERED to CEASE and DESIST from further
performing the functions of Punong Barangay of Barangay Batasan
 70

Hills, District II, Quezon City and to relinquish the same to Petitioner
MANUEL LAXINA, SR., pending final resolution of appeal.

SO ORDERED.3

On October 27, 1999, the COMELEC issued a writ of execution directing

Fermo to vacate the office of Barangay Chairman of Barangay Batasan
Hills. On October 28, 1999, Fermo was served a copy of the writ of
execution but refused to acknowledge receipt thereof. He also refused to
vacate the premises of the barangay hall of Batasan Hills.4 This did not,
however, prevent respondent and his staff from discharging their functions
and from holding office at the SK-Hall of Batasan Hills.5 On the same date,
respondent appointed Godofredo L. Ramos as Barangay Secretary6 and on
November 8, 1999, he appointed Rodel G. Liquido as Barangay Treasurer.7

On November 12, 1999, the COMELEC, acting on respondent's motion to

cite Fermo for contempt,8 issued an alias writ of execution,9 which was
likewise returned unsatisfied. Finally, on November 16, 1999, respondent
took his oath of office as Barangay Captain of Batasan Hills, Quezon City
before Mayor Ismael Mathay, Jr.10 The following day, November 17, 1999,
Roque Fermo turned over to respondent all the assets and properties of the
barangay.11

On November 20, 1999, the Barangay Council of Batasan Hills issued

Resolution No. 001-S-1999 ratifying the appointment of Godofredo L.
Ramos as Barangay Secretary, effective November 1, 199912 and
Resolution No. 002-S-1999 ratifying the appointment of Rodel G. Liquido, as
Barangay Treasurer, also effective November 1, 1999.13 However, the
appointees of Roque Fermo to the same position registered objections to
the said Resolutions. In order to accommodate these appointees,
respondent agreed to grant them allowances and renumerations for the
period of November 1–7, 1999.14

In Resolution No. 017-S-99 dated December 11, 1999, the barangay council
of Batasan Hills, authorized the appropriation of P864,326.00 for the
November to December 1999 salary of its barangay officials and
employees.15 Pursuant thereto, the barangay payroll was issued on
December 18, 1999, enumerating the names of respondent and his
appointed barangay secretary and barangay treasurer as among those
entitled to compensation for services rendered for the period November 8,
1999 to December 31, 1999.16 Petitioners Jose G. Mendoza, Jr., Rosario E.
Espino and Teresita S. Mendoza, who were barangay councilors, refused to
sign Resolution No. 017-S-99 as well as said payroll.17

Sometime in January 2000, petitioner barangay councilors filed with the

Quezon City Council a complaint18 for violation of the anti-graft and corrupt
 71

practices act and falsification of legislative documents against respondent

and all other barangay officials who signed the questioned resolution and
payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay
Treasurer Rodel G. Liquido, Barangay Kagawad Charlie O. Mangune,
Gonzalo S. Briones, Sr., Maryann T. Castañeda, Elias G. Gamboa, and SK-
Chairman Sharone Amog. They contended that defendants made it appear
in the payroll that he and his appointees rendered services starting
November 8, 1999 when, in truth, they commenced to serve only on
November 17, 1999 after respondent took his oath and assumed the office
of barangay chairman. They further claimed that the effectivity date of the
barangay secretary and barangay treasurer's appointment, as approved in
Resolution No. 001-S-1999, was November 16, 1999, but respondent
fraudulently antedated it to November 1, 1999. Petitioners also contended
that respondent connived with the other barangay officials in crossing out
their names in the payroll.

In their joint counter-affidavit,19 defendants claimed that the taking anew of

the oath of office as barangay chairman was a mere formality and was not a
requirement before respondent can validly discharge the duties of his office.
They contended that respondent's appointees are entitled to the
remuneration for the period stated in the payroll as they commenced to
serve as early as October 28, 1999. They added that the names of the 3
petitioner barangay councilors who refused to sign the assailed resolution
and daily wage payroll were crossed out from the said payroll to prevent any
further delay in the release of the salaries of all barangay officials and
employees listed therein.20

On October 2, 2000, the Special Investigation Committee on Administrative

Cases of the City ruled that respondent had no power to make
appointments prior to his oath taking on November 16, 1999.21 The
Committee, however, found that respondent and the other barangay officials
who signed the questioned resolution and payroll acted in good faith when
they erroneously approved the grant of renumerations to respondent's
appointees starting November 8, 1999. Nevertheless, it found respondent
guilty of grave misconduct and recommended the penalty of 2 months
suspension. The charges against Barangay Secretary Godofredo Ramos
and Barangay Treasurer Rodel Liquido were dismissed, inasmuch as the
City Council's disciplinary jurisdiction is limited to elective barangay officials
only. As to Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones,
Sr., Maryann T. Castañeda, Elias G. Gamboa, and SK-Chairman Sharone
Amog, the charges against them were likewise dismissed on the ground that
there was no "separate and independent proof that . . . [they] conspired with
Punong Barangay Laxina . . . Ramos and Liquido in committing the acts
therein complained of."22
 72

On October 3, 2000, the Quezon City Council adopted the findings and
recommendations of the Committee.23 Respondent filed a motion for
reconsideration.24 On October 9, 2000, however, the City Council
implemented the decision and appointed Charlie Mangune as acting
barangay chairman of Batasan Hills, Quezon City.25

Respondent filed a petition for certiorari26 with the Regional Trial of Quezon

City, Branch 67, seeking to annul the decision of the Quezon City Council.
In their answer, petitioners prayed for the dismissal of the petition, arguing
that respondent failed to exhaust administrative remedies and the trial court
has no jurisdiction over the case because appeals from the decision of the
City Council should be brought to the Office of the President.

On November 13, 2000, a summary judgment was rendered by the trial

court in favor of respondent. It did not rule on the propriety of the re-taking
of the oath office by the latter, but nevertheless, exonerated him on the
basis of the finding of the City Council that he did not act in bad faith but
merely "misread the law, as applied to the facts." The dispositive portion of
the said decision, states:

WHEREFORE, the decision finding herein petitioner guilty of grave

misconduct and imposing upon him the penalty of suspension and loss
of concomitant benefits for two (2) months is hereby annulled and set
aside. The suspension of the petitioner is hereby lifted and all benefits
due to him are ordered restored.

The motion for a preliminary hearing on the affirmative defense of

respondents and the motion to drop City Councilor Banal as party
respondent are both denied.

SO ORDERED.27

Petitioners filed the instant petition for review raising pure questions of law.

Before going into the substantive issues, we shall first resolve the issue on
exhaustion of administrative remedies.

The trial court ruled that Section 67 of the Local Government Code, which
allows an appeal to the Office of the President, is not applicable because
the decision of the City Council is final and executory. It added that
respondent correctly filed a petition for certiorari because he had no other
plain, speedy and adequate remedy. The trial court further ratiocinated that
an appeal to the Office of the President before going to the regular courts
might render the case moot and academic inasmuch as the penalty of
suspension might have been fully served by the time the court renders a
decision.
 73

Sections 61 and 67 of the Local Government Code, provide:

Section 61. Form and Filing of Administrative Complaints. — A verified

complaint against any erring local elective official shall be prepared as
follows:

xxx             xxx             xxx

(c) A complaint against any elective barangay official shall be filed

before the sangguniang panlungsod or sangguniang bayan concerned
whose decision shall be final and executory. (emphasis supplied)

Sec. 67. Administrative Appeals. — Decisions in administrative cases

may, within thirty (30) days from receipt thereof, be appealed to the
following:

xxx             xxx             xxx

(b) The Office of the President, in the case of decisions of

the sangguniang panlalawigan and the sangguniang panlungsod of
highly urbanized cities and independent component cities.

Decision of the Office of the President shall be final and executory.

In interpreting the foregoing provisions, the trial court did not consider
Section 68 of the same code which provides:

An appeal shall not prevent a decision from being final and executory.
The respondent shall be considered as having been placed under
preventive suspension during the pendency of an appeal in the event
that he wins such appeal. In the event the appeal results in an
exoneration, he shall be paid his salary and such other emoluments
during the pendency of the appeal.

Obviously, the said Code does not preclude the taking of an appeal. On the
contrary, it specifically allows a party to appeal to the Office of the
President. The phrases "final and executory," and "final or executory" in
Sections 67 and 68, respectively, of the Local Government Code, are not,
as erroneously ruled by the trial court, indicative of the appropriate mode of
relief from the decision of the Sanggunian concerned. These phrases simply
mean that the administrative appeals will not prevent the enforcement of the
decisions.28 The decision is immediately executory but the respondent may
nevertheless appeal the adverse decision to the Office of the President or to
the Sangguniang Panlalawigan, as the case may be.29

It is clear that respondent failed to exhaust all the administrative remedies

available to him. The rule is that, before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of
 74

all the means of administrative processes afforded him. Hence, if a remedy

within the administrative machinery can still be availed of by giving the
administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction, then such remedy should be exhausted first
before the court's judicial power can be sought. The premature invocation of
the court's intervention is fatal to one's cause of action.30

The application of the doctrine of exhaustion of administrative remedies,

however, admits of exceptions, one of which is when the issue involved is
purely legal.31 In the case at bar, the issues of whether or not the decision of
the Sangguniang Panlungsod in disciplinary cases is appealable to the
Office of the President, as well as the propriety of taking an oath of office
anew by respondent, are certainly questions of law which call for judicial
intervention.32 Furthermore, an appeal to the Office of the President would
not necessarily render the case moot and academic. Under Section 68, in
the event the appeal results in his exoneration, the respondent shall be paid
his salary and such other emoluments during the pendency of the appeal.
Hence, the execution of the penalty or expiration of term of the public official
will not prevent recovery of all salaries and emoluments due him in case he
is exonerated of the charges. Clearly, therefore, the trial court correctly took
cognizance of the case at bar, albeit for the wrong reasons.

We now come to the substantive issues.

To be sure, an oath of office is a qualifying requirement for a public office; a

prerequisite to the full investiture with the office. It is only when the public
officer has satisfied the prerequisite of oath that his right to enter into the
position becomes plenary and complete.33 However, once proclaimed and
duly sworn in office, a public officer is entitled to assume office and to
exercise the functions thereof. The pendency of an election protest is not
sufficient basis to enjoin him from assuming office or from discharging his
functions.34 Unless his election is annulled by a final and executory
decision,35 or a valid execution of an order unseating him pending appeal is
issued, he has the lawful right to assume and perform the duties of the
office to which he has been elected.

In the case at bar, respondent was proclaimed as the winner in the 1997
Barangay Elections in Batasan Hills, Quezon City; he took his oath on May
27, 1997 and thereafter assumed office. He is therefore vested with all the
rights to discharge the functions of his office. Although in the interim, he was
unseated by virtue of a decision in an election protest decided against him,
the execution of said decision was annulled by the COMELEC in its
September 16, 1999 Resolution which, incidentally, was sustained by this
Court on March 13, 2000, in Fermo v. Commission on Elections.36 It was
held therein that "[w]hen the COMELEC nullified the writ of execution
pending appeal in favor of FERMO, the decision of the MTC proclaiming
 75

FERMO as the winner of the election was stayed and the 'status quo' or the
last actual peaceful uncontested situation preceding the controversy was
restored . . ."37 The status quo referred to the stage when respondent was
occupying the office of Barangay Captain and discharging its functions. For
purposes of determining the continuity and effectivity of the rights arising
from respondent's proclamation and oath taken on May 27, 1997, it is as if
the said writ of execution pending appeal was not issued and he was not
ousted from office. The re-taking of his oath of office on November 16, 1999
was a mere formality considering that his oath taken on May 27, 1997
operated as a full investiture on him of the rights of the office. Hence, the
taking anew of his oath of office as Barangay Captain of Batasan Hills,
Quezon City was not a condition sine qua non to the validity of his re-
assumption in office and to the exercise of the functions thereof.

Having thus ruled out the necessity of respondent's taking anew of the oath
of office, the next question to be resolved is: when is respondent considered
to have validly re-assumed office — from October 28, 1999, the date of
service of the writ of execution to Roque Fermo and the date respondent
actually commenced to discharge the functions of the office, or from
November 17, 1999, the date Roque Fermo turned over to respondent the
assets and properties of Barangay Batasan Hills, Quezon City?

The records show that the COMELEC served on October 28, 1999 a writ of
execution ordering Fermo to desist from performing the function of the
Office of Barangay Captain, but the latter refused to comply therewith. His
supporters prevented respondent from occupying the barangay hall,
prompting the latter to move for the issuance of an alias wit of execution,
which was granted on November 12, 1999. It was only on November 17,
1999 that the turn-over to respondent of the assets and properties of the
barangay was effected. Undoubtedly, it was Fermo's defiance of the writ
that prevented respondent from assuming office at the barangay hall. To
reckon, therefore, the effectivity of respondent's assumption in office on
November 17, 1999, as petitioners insist, would be to sanction dilatory
maneuvers and to put a premium on disobedience of lawful orders which
this Court will not countenance. It is essential to the effective administration
of justice that the processes of the courts and quasi-judicial bodies be
obeyed.38 Moreover, it is worthy to note that although the physical
possession of the Office of the Barangay Captain was not immediately
relinquished by Fermo to respondent, the latter exercised the powers and
functions thereof at the SK-Hall of Batasan Hills, Quezon City starting
October 28, 1999. His re-assumption in office effectively enforced the
decision of the COMELEC which reinstated him in office. It follows that all
lawful acts of the latter arising from his re-assumption in office on October
28, 1999 are valid. Hence, no grave misconduct was committed by him in
appointing Godofredo L. Ramos and Rodel G. Liquido as Barangay
 76

Secretary and Barangay Treasurer, respectively, and in granting them

emoluments and renumerations for the period served.

Respondent was also charged of conniving with the other barangay officials
in crossing out the names of the petitioner barangay councilors in the
payroll. The petition alleged that as a consequence of the striking out of the
names of the petitioner barangay officials, they were not able to receive
their salaries for the period November 8 to December 31, 1999.39 A reading
of the payroll reveals that the names of said petitioners and their
corresponding salaries are written thereon. However, they refused to sign
the payroll and to acknowledge receipt of their salaries to manifest their
protest. Quod quis ex culpa sua damnum sentire. Indeed, he who suffered
injury through his own fault is not considered to have suffered any
damage.40 Hence, the investigative committee correctly brushed aside this
charge against respondent.

The trial court therefore did not err in exonerating respondent and pursuant
to Article 68 of the Local Government Code, he should be paid his salaries
and emoluments for the period during which he was suspended without pay.

WHEREFORE, in view of all the foregoing, the instant petition for review is
DENIED. The Summary Judgment of the Regional Trial Court of Quezon
City, Branch 77, in Civil Case No. Q-00-42155, exonerating respondent
Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering the
payment of all benefits due him during the period of his suspension, is
AFFIRMED.

SO ORDERED.

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
 77

respondent Mayor Richard J. Gordon of Olongapo City was appointed

Chairman and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to
prevent useless and unnecessary expenditures of public funds by way of
salaries and other operational expenses attached to the
office . . . ."2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a

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

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the

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

Sec. 261. Prohibited Acts. — The following shall be guilty of an

election offense: . . . (g) Appointment of new employees, creation
of new position, promotion, or giving salary increases. — During
the period of forty-five days before a regular election and thirty
days before a special election, (1) any head, official or appointing
officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled
corporations, who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and fills any new
position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is
 78

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,
 79

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
—
 80

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
 81

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 . . . .
 82

Indeed, the power of choice is the heart of the power to appoint.

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

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

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

While it may be viewed that the proviso merely sets the qualifications of the

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

Since the ineligibility of an elective official for appointment remains all

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

MR. DAVIDE. On Section 4, page 3, line 8, I propose the

substitution of the word "term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make

possible for one to resign from his position.
 83

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

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

position.

MR. DAVIDE. Besides, it may turn out in a given case that

because of, say, incapacity, he may leave the service, but if he is
prohibited from being appointed within the term for which he was
elected, we may be depriving the government of the needed
expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains

ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official

was, notwithstanding his ineligibility, appointed to other government posts,
he does not automatically forfeit his elective office nor remove his ineligibility
imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or
designation thereto cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec. 13, Art. VI, of the
Constitution where "(n)o Senator or Member of the House of
Representatives may hold any other office or employment in the
Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only after they have
been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed,
thus running the risk of losing the elective post as well as not being
appointed to the other post. It is therefore clear that ineligibility is not directly
related with forfeiture of office. ". . . . The effect is quite different where it is
expressly provided by law that a person holding one office shall be
ineligible to another. Such a provision is held to incapacitate the incumbent
of an office from accepting or holding a second office (State ex rel. Van
Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga
733, 61 SE 721) and to render his election or appointment to the latter office
void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40
ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR
941)." 26 "Where the constitution, or statutes declare that persons holding
one office shall be ineligible for election or appointment to another office,
either generally or of a certain kind, the prohibition has been held to
incapacitate the incumbent of the first office to hold the second so that any
attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v.
Hogan, 218 So 2d 258, 283 Ala 445)." 27
 84

As incumbent elective official, respondent Gordon is ineligible for

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

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

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

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

. . . . (much) as we would like to have the present Mayor of

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

For, indeed, "a Constitution must be firm and immovable, like a mountain
amidst the strife of storms or a rock in the ocean amidst the raging of the
waves." 30 One of the characteristics of the Constitution is permanence, i.e.,
"its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or
occasional infatuations of the people with ideas or personalities . . . . Such a
 85

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.

G.R. No. 110544 October 17, 1995

REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud,

Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor),
SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang
Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA
MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG
BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION),
BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.:

Petitioners institute this special civil action for certiorari and prohibition

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

The present controversy arose from the following antecedents:

 86

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,
 87

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:

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
 88

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
 89

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
 90

that the grounds stated in the said motion were a mere rehash of petitioners'
original motion to hold the case in abeyance.6 The dispositive portion of its
order reads as follows:

WHEREFORE, in view of the foregoing, the arraignment of the

accused which was scheduled today is cancelled. Mayor
Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto,
Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado
Estrellanes are, however, hereby ordered to show cause in writing
within ten (10) days from service hereof why they should not be
cited for contempt of court for their failure to appear in court today
for arraignment.

In case of an adverse resolution on the motion to quash which is

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

SO ORDERED.7

On 19 February 1993, respondent Sandiganbayan issued an order holding

consideration of all incidents pending the issuance of an extended
resolution.8

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

WHEREFORE, considering the absence of the accused from the

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

Give proper notice to the accused and principal counsel, Atty.

Alfonso Briones. Considering that the accused come all the way
from Himalalud, Negros Oriental, no postponement will be
allowed.

SO ORDERED.9

Hence, this special civil action for certiorari and prohibition where petitioners

attribute to respondent Sandiganbayan the following errors:

A. The Respondent Court committed grave abuse of discretion in

denying petitioners' motions for the suspension of the
proceedings in Criminal Case No. 16936 in spite of the pendency
 91

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
 92

The rationale behind the principle of prejudicial question is to avoid two

conflicting decisions.14 It has two essential elements:

(a) the civil action involves an issue similar or intimately related to

the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the

criminal action may proceed.15

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

All the elements of a prejudicial question are clearly and unmistakably

present in this case. There is no doubt that the facts and issues involved in
the civil action (No. 36769) and the criminal case (No. 16936) are closely
related. The filing of the criminal case was premised on petitioners' alleged
partiality and evident bad faith in not paying private respondents' salaries
and per diems as sectoral representatives, while the civil action was
instituted precisely to resolve whether or not the designations of private
respondents as sectoral representatives were made in accordance with law.

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

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

Private respondents insist that even if their designations are nullified, they
are entitled to compensation for actual services rendered.16 We disagree. As
found by the trial court and as borne out by the records, from the start,
private respondents' designations as sectoral representatives have been
 93

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 facto officer where there is no de jure office,
although there may be a de facto officer in a de jure office.19

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19

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

SO ORDERED.

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
 94

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 banc1 of the Commission of Elections
(COMELEC) denying the motion for reconsideration of the decision2 of its
First Division,3 which reversed the decision4 of the Regional Trial Court5 in
the election case6 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.
 95

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 municipality7 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,
 96

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
 97

necessary that such damages have been foreseen or could have

reasonably been foreseen by the defendant.

Considering that actual or compensatory damages are appropriate only in

breaches of obligations in cases of contracts and quasi-contracts and on the
occasion of crimes and quasi-delicts where the defendant may be held
liable for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must
necessarily be hinged on either a contract or a quasi-contract or a tortious
act or omission or a crime, in order to effectively recover actual or
compensatory damages. 15 In the absence of any or all of these, "the
claimant must be able to point out a specific provision of law authorizing a
money claim for election protest expenses against the losing party" 16. For
instance, the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create
obligations not by contract, crime or negligence, but directly by law:

Art. 19. Every person must in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently

causes damage to another, shall indemnify the latter for the
same.

xxx xxx xxx

Art. 32. Any public officer or employee, or any private individual,

who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for
damages:

xxx xxx xxx

(5) Freedom of suffrage;

In any of the cases referred to in this article, whether or not the

defendant's act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. . . . 17

Claimed as part of the damages to which private respondent is allegedly

entitled to, is P169,456.00 constituting salary and other emoluments from
March, 1994 to April, 1995 that would have accrued to him had there not
been an execution of the trial court's decision pending appeal therefrom in
the COMELEC.
 98

The long-standing rule in this jurisdiction is that notwithstanding his

subsequent ouster as a result of an election protest, an elective official who
has been proclaimed by the COMELEC as winner in an electoral contest
and who assumed office and entered into the performance of the duties of
that office, is entitled to the compensation, emoluments and allowances
legally provided for the position. 18 We ratiocinated in the case of Rodriguez
vs. Tan that:

This is as it should be. This is in keeping with the ordinary course

of events. This is simple justice. The emolument must go to the
person who rendered the service unless the contrary is provided.
There is no averment in the complaint that he is linked with any
irregularity vitiating his election. This is the policy and the rule that
has been followed consistently in this jurisdiction in connection
with positions held by persons who had been elected thereto but
were later ousted as a result of an election protest. The right of
the persons elected to compensation during their incumbency has
always been recognized. We cannot recall of any precedent
wherein the contrary rule has been upheld. 19

In his concurring opinion in the same case, however, Justice Padilla

equally stressed that, while the general rule is that the ousted elective
official is not obliged to reimburse the emoluments of office that he had
received before his ouster, he would be liable for damages in case he
would be found responsible for any unlawful or tortious acts in relation
to his proclamation. We quote the pertinent portion of that opinion for
emphasis:

Nevertheless, if the defendant, directly or indirectly, had

committed unlawful or tortious acts which led to and resulted in
his proclamation as senator-elect, when in truth and in fact he
was not so elected, he would be answerable for damages. In that
event the salary, fees and emoluments received by or paid to him
during his illegal incumbency would be a proper item of
recoverable damage. 20

The criterion for a justifiable award of election protest expenses and

salaries and emoluments, thus, remains to be the existence of a
pertinent breach of obligations arising from contracts or quasi-
contracts, tortious acts, crimes or a specific legal provision authorizing
the money claim in the context of election cases. Absent any of these,
we could not even begin to contemplate liability for damages in
election cases, except insofar as attorney's fees are concerned, since
the Civil Code enumerates the specific instances when the same may
be awarded by the court.
 99

Art. 2208. In the absence of stipulation, attorney's fees and

expenses of litigation, other than judicial costs, cannot be
recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the

plaintiff to litigate with third persons or to incur expenses to
protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding

against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiffs plainly valid, just and demandable
claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers,

laborers and skilled workers;

(8) In actions for indemnity under workmen's compensation and

employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a

crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable
that attorney's fees and expenses of litigation should be
recovered. 21

Given the aforecited laws, and jurisprudence on the matter at issue, let us
now look into the basis of respondent COMELEC for awarding actual
damages to private respondent in the form of reimbursement for attorney's
fees, actual expenses for xerox copies, and salary and other emoluments
that should have accrued to him from March, 1994 to April, 1995 had the
RTC not issued an order for execution pending appeal.

The First Division of the COMELEC ruled on private respondent's claim for
actual or compensatory damages in this wise:

. . . under the present legal setting, it is more difficult than in the

past to secure an award of actual or compensatory damages
 100

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
 101

final judgment bur by an order of execution pending appeal which

was groundless and issued with grave abuse of discretion.
Protestant-appellee occupied the position in an illegal manner as
a usurper and, not having been elected to the office, but merely
installed through a baseless court order, he certainly had no right
to the salaries and emoluments of the office.

Actual damages in the form of reimbursement for attorney's fees

(P372,500.00), actual expenses for xerox copies (P15,154.00),
unearned salary and other emoluments from March 1994 to April
1995 or 14 months at P12,104.00 a month (P169,456.00), totalled
P557,110.00. To (sic) this amount, however, P300,000.00
representing that portion of attorney's fees denominated as
success fee' must be deducted this being premised on a
contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are,
of course, disallowed not falling within the purview of Section 259
of the Omnibus Election Code.

It goes without saying that if the protestant-appellee fails to pay

the actual damages of P257,110.00, the amount will be assessed,
levied and collected from the bond of P500,000.00 which he put
up before the Court as
a condition for the issuance of the order of execution of judgment
pending appeal. 22

Petitioner filed a motion for reconsideration of the aforecited decision on

March 29, 1995. The COMELEC en banc, however, did not find any new
matter substantial in nature, persuasive in character or sufficiently
provocative to compel reconsideration of said decision and accordingly
affirmed in toto the said decision. Hence, this petition raises, among others,
the issue now solely remaining and in need of final adjudication in view of
the mootness of the other issues anent petitioner's right to the contested
office the term for which has already expired.

We have painstakingly gone over the records of this case and we can
attribute to petitioner no breach of contract or quasi-contract; or tortious act
nor crime that may make him liable for actual damages. Neither has private
respondent been "able to point out to a specific provision of law authorizing
a money claim for election protest expenses against the losing party." 23

We find respondent COMELEC's reasoning in awarding the damages in

question to be fatally flawed. The COMELEC found the election protest filed
by the petitioner to be clearly unfounded because its own appreciation of the
contested ballots yielded results contrary to those of the trial court.
Assuming, ex gratia argumentis, that this is a reasonable observation not
 102

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
 103

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
 104

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 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.

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
 105

petitioner had forfeited the said office upon his filing of the certificate of
candidacy in question.

Upon these facts, the Court of First Instance of Rizal, held in the suit for
injunction instituted by petitioner against respondents that (a) the former had
ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was
filed on September 15, 1961; (b) respondent del Rosario became municipal
mayor upon his having assumed office as such on September 21, 1961; (c)
petitioner must reimburse, as actual damages, the salaries to which
respondent was entitled as Mayor from September 21, 1961 up to the time
he can reassume said office; and (d) petitioner must pay respondent
P1,000.00 as moral damages.1äwphï1.ñët

This judgment was, on appeal by petitioner to the Court of Appeals,

affirmed in toto except for the award of moral damages which was
eliminated. The same Court reaffirmed its stand upon petitioner's filing a
motion to reconsider. Hence, this petition for certiorari to review the ruling of
the Court of Appeals.

Petitioner first argues that both the lower court and the Court of Appeals had
done what they had no jurisdiction to do — review a resolution of the
Commission on Elections. The submission is without merit.

The Constitution empowers the Commission on Elections to

x x x decide, save those involving the right to vote, all administrative

questions affecting elections, including the determination of the
number and location of polling places, and the appointment of election
inspectors and of other election officials x x x . 2 (Emphasis supplied)

And the decisions, orders and rulings of the Commission on these

administrative questions are reviewable only by the Supreme Court.3 Since
the powers of the Commission are limited to matters connected with the
"conduct of elections," necessarily its adjudicatory or quasi-judicial powers
are likewise limited to controversies connected with the "conduct of
elections." This phrase covers all the administrative process of preparing
and operating the election machinery so that the people could exercise their
right to vote at the given time.4 All questions and controversies that may
arise therefrom are to be resolved exclusively by the Commission, subject to
review only by the Supreme Court.

However, in this case there appears to be no decision, order or ruling of the

Commission on any administrative question or controversy. There was no
dispute before the Commission. Respondent never contested the filing of
petitioner's certificate of candidacy. Neither has he disputed before that
body the withdrawal thereof. And even if there was a controversy before the
Commission, the same did not and could not possibly have anything to do
 106

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
 107

found as a fact that the certificate in question was filed with petitioner's

knowledge and consent. And since the nature of the remedy taken by
petitioner before Us would allow a discussion of purely legal questions only,
such fact is deemed conceded.5

Petitioner would next maintain that respondent Court of Appeals likewise

erred in affirming a lower court judgment requiring petitioner to pay
respondent Del Rosario by way of actual damages the salaries he was
allegedly entitled to receive from September 21, 1961, to the date of
petitioner's vacation of his office as mayor. In support of this he relies solely
upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been
proclaimed and had assumed office but was later on ousted in an election
protest, is a de facto officer during the time he held the office of senator,
and can retain the emoluments received even as against the successful
protestant. Petitioner's factual premise is the appellate court's finding that he
was a de facto officer when he continued occupying the office of mayor after
September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is
not applicable here for absence of factual and legal similarities. The
Rodriguez case involved a senator who had been proclaimed as duly
elected, assumed the office and was subsequently ousted as a result of an
election contest. These peculiar facts called for the application of an
established precedent in this jurisdiction that the candidate duly proclaimed
must assume office notwithstanding a protest filed against him and can
retain the compensation paid during his incumbency. But the case at bar
does not involve a proclaimed elective official who will be ousted because
of an election contest. The present case for injunction and quo
warranto involves the forfeiture of the office of municipal mayor by the
incumbent occupant thereof and the claim to that office by the vice-mayor
because of the operation of Sec. 27 of the Rev. Election Code. The
established precedent invoked in the Rodriguez case can not therefore be
applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office
may recover from an officer de facto the salary received by the latter during
the time of his wrongful tenure, even though he entered into the office in
good faith and under color of title"6 that applies in the present case. The
resulting hardship occasioned by the operation of this rule to the de
facto officer who did actual work is recognized; but it is far more cogently
acknowledged that the de facto doctrine has been formulated, not for the
protection of the de facto officer principally, but rather for the protection of
the public and individuals who get involved in the official acts of persons
discharging the duties of an office without being lawful officers.7 The
question of compensation involves different principles and concepts
however. Here, it is possession of title, not of the office, that is decisive.
 108

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.

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.

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
 109

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:
 110

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
facto convert his temporary status to that of permanent.

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 temporary4 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 not ipso 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
 111

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:

XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City

Re: DATO, Tito
— Appointment of

March 19, 1976

The Honorable
The Provincial Governor of Camarines Sur
Naga City.

Sir:

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.
 112

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 Head8

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 to approve 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 temporary status 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.

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 mandamus instituted by herein private
respondent Tito Dato is hereby DISMISSED.

SO ORDERED.
 113

G.R. No. 128082      April 18, 2001

EDITHA G. PABU-AYA, petitioner,
vs.
THE COURT OF APPEALS, THE CIVIL SERVICE COMMISSION, THE
PROVINCIAL GOVERNMENT OF NEGROS OCCIDENTAL,
PARTICULARLY THE SANGGUNIANG PANLALAWIGAN AND/OR
ROMEO J. GAMBOA, JR., VICE GOVERNOR AND PRESIDING
OFFICER, SANGGUNIANG PANLALAWIGAN OF NEGROS
OCCIDENTAL, respondents.

DE LEON, JR., J.:

Before us is a petition for review on certiorari, filed under Rule 45 of the

revised Rules of Court (but erroneously captioned as a petition for
certiorari), by way of appeal from the Decision of the Court of Appeals in
CA-G.R. SP No. 37632,1 promulgated on January 6, 1997, which affirmed
Resolution Nos. 94-3178 and 95-2145 dated June 14, 1994 and March 23,
1995, respectively, of the respondent Civil Service Commission.

The undisputed facts are as follows:

Petitioner Editha G. Pabu-aya was an employee of the Provincial Board of

Negros Occidental, also called the Sangguniang Panlalawigan of the said
province. She started as a casual laborer on July 1, 1973. On November 14,
1986 she was appointed as Utility Worker on a permanent status. She was
later appointed as Bookbinder II, on a temporary status, on September 16,
1991. On October 16, 1992, Romeo J. Gamboa, Vice Governor of Negros
Occidental, issued a Memorandum2 informing her that her temporary
appointment as Bookbinder II had already expired on September 16, 1992,
and that consequently she could no longer continue in the service. On
October 23, 1992, she wrote the Sangguniang Panlalawigan and
acknowledge therein her failure to perform her duties satisfactorily as
Bookbinder II and promised that she would improve her performance should
her appointment be renewed.3 On January 29, 1993, she wrote to the then
President Fidel V. Ramos appealing for assistance regarding her dismissal
allegedly without due process.4 Her letter was indorsed to the Provincial
Governor of Negros Occidental by Director Miguel V. Sison, Jr.5 of the
Presidential Action Center. Acting on this indorsement, the then Governor
Rafael Conscolluela proposed the re-appointment of petitioner Pabu-aya as
a Utility Worker under the following terms and conditions:

a. That she execute an undertaking to the effect that she promises to

perform the function of a Utility Worker and other related works which
may be assigned by her immediate supervisor.
 114

b. That her accumulated leave credits of 221.37 days must be applied

for, otherwise, it shall be forfeited. She starts anew accumulating leave
credits after six months continuous service. This is so because of a
gap in the service.

c. That her re-appointment can not be retro-acted September 16, 1992

because there was an incumbent to the position to which she is
considered during said date.6

None of the above conditions was acceptable to nor followed by the

petitioner. On October 29, 1993 the petitioner withdrew her appointment
papers as Utility Worker in the General Services, effective September 16,
1992, from the Human Resource Management Services upon learning that
the same was not signed by the then Governor Coscolluela. Instead,
petitioner appealed the Memorandum dated October 16, 1992 of Vice
Governor Gamboa, terminating her employment as Bookbinder II, to the
Civil Service Commission (hereinafter called the Commission, for brevity). In
Resolution No. 94-04377 dated January 20, 1994, respondent Commission
dismissed the said appeal of the petitioner.

Subsequently, the petitioner filed with the respondent Commission a request

for reinstatement to her original position as Utility Worker. In Resolution No.
94-31788 dated June 14, 1994, respondent Commission denied the
petitioner's request for reinstatement to the position of Utility Worker for
"lack of merit". According to respondent Commission, when the petitioner
accepted the temporary appointment as Bookbinder II, without any
objection, she accepted the fact that, as a temporary employee, she has no
security of tenure and may be removed from the service without cause and
due process.

Petitioner's motion for reconsideration was denied by respondent

Commission9 in its Resolution No. 95-2145, promulgated on March 23,
1995, the pertinent portion of which reads as follows:

"From the records, it is clear that Pabu-aya accepted the position of

Bookbinder II under temporary status without any objection. When she
accepted her temporary appointment she also accepted the conditions
thereof. It is stressed that she, being a temporary employee, has no
security of tenure. Her appointment may be terminated at anytime with
or without cause or it may be renewed at the pleasure of the appointing
authority in the exercise of his discretion. As Pabu-aya's temporary
appointment was not renewed after the expiration of the twelve (12)
months [sic] period, her separation from the service is valid."10

Petitioner on May 20, 1995 then filed a "Petition for Certiorari and/or
Review" before this Court which, however, referred the same to the
 115

respondent Court of Appeals. In a Decision promulgated on January 6,

1997, respondent Court of Appeals denied due course and dismissed the
said petition. The pertinent portion of said Decision of the Court of Appeals
reads as follows:

"Petitioner's quest for reinstatement as utility worker is also unavailing

as her prayer was also denied by the Civil Service Commission per
Resolution 94-3197 dated June 14, 1994, and further upheld in the
Resolution No. 95-2145 dated May 23, 1995.11 Moreover, the Solicitor
General's Office, in representation of the Civil Service Commission,
correctly maintained that petitioner having accepted the position of
Bookbinder II, aware of the temporary nature of such appointment, she
is deemed to have lost and/or waived whatever right or privileged [sic]
insofar as her tenurial security is concerned. For, an employee is
entitled only to such security of tenure as the appointment papers
actually confer.1âwphi1.nêt

xxx      xxx      xxx

WHEREFORE, the petition for certiorari and prohibition is hereby

DENIED DUE COURSE, and is DISMISSED, and the Resolution Nos.
94-3178, and 95-2145 dated June 14, 1994 and March 23, 1995,
respectively, of the respondent Civil Service Commission are
AFFIRMED."12

The petitioner then timely filed with this Court the present petition for review
on certiorari, under Rule 45 of the revised Rules of Court, but it was
erroneously captioned as "Petition for Certiorari."

The petitioner raised the following assignment of errors:

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER'S

ACCEPTANCE OF A TEMPORARY APPOINTMENT WAS AN
INDICATION OF HER RELINQUSHMENT OF HER POSITION AS A
PERMANENT EMPLOYEE AND FORECLOSED HER RIGHT TO
CONTEST HER NON-REINSTATEMENT.

II

THE COURT OF APPEALS ERRED IN ARBITRARILY

DISREGARDING THE CONSTITUTIONAL RIGHT OF PETITIONER
TO SECURITY OF TENURE.

III
 116

THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER

IS GUILTY OF LACHES.

We regard to the first issue as to whether or not the respondent Court of

Appeals erred in ruling that petitioner's subsequent acceptance of a
temporary appointment (as Bookbinder II) was an indication of her
relinquishment of her position (Utility Worker) as a permanent employee and
thus foreclosed her right to contest her non-reinstatement, the Court of
Appeals upheld and adopted the findings of facts of respondent
Commission, and correctly ruled on that issue. As a general rule, the
findings of fact of the respondents Commission and Court of Appeals are
accorded great weight. In a plethora of cases, this Court has held that lower
courts are in a better position to determine the truth of the matter in litigation
since the pieces of evidence are presented before them and they are able to
look into the credibility and the demeanor of the witnesses on the witness
stand. Furthermore, quasi-judicial bodies like the Civil Service Commission
are better-equipped in handling cases involving the employment status of
employees as those in the Civil Service since it is within the field of their
expertise. Factual findings of administrative agencies are generally held to
be binding and final so long as they are supported by substantial evidence
in the record of the case.13 It is not the function of the Supreme Court to
analyze or weigh all over again the evidence and credibility of witnesses
presented before the lower court, tribunal or office. The Supreme Court is
not a trier of facts. Its jurisdiction is limited to reviewing and revising errors
of law imputed to the lower court, its findings of fact being conclusive and
not reviewable by this Court.14 In the case at bar, respondent Court of
Appeals acted properly when it gave scant consideration to petitioner Pabu-
aya's claim that had she known of the demotion in status from that of a
Utility Worker, on a permanent status, to that of Bookbinder II on a
temporary status, she would have stuck to her old permanent position of
Utility Worker rather than put to naught her long years of service in the
government. It is a fact, however, that petitioner Pabu-aya freely took her
oath of office as Bookbinder II on a temporary status. That the said position
carries an annual salary of P27,000.00 which is higher in amount than that
of a Utility Worker is not disputed. The new position of Bookbinder II was in
fact more beneficial to petitioner. Besides, the letter of the Vice Governor
dated October 8, 1991 denying petitioner's application to the position of
Clerk II explained that "the position of Bookbinder II is more beneficial on
your part for the reason that you can be re-appointed on a permanent
basis."15 That letter sufficiently informed the petitioner that her appointment
as Bookbinder II was in fact temporary; otherwise, there would be no more
need to re-appoint her on a permanent basis.

According to the findings of the respondent Commission, which were

adopted by respondent Court of Appeals, the claim of the petitioner that she
 117

was not furnished a copy of her new appointment as Bookbinder II, showing
the status of her appointment as temporary in nature, cannot be relied upon.
Her appointment as Bookbinder II dated September 16, 199116 shows that it
is "Katayuang Temporary x x x." It is a normal office procedure to furnish a
copy of the appointment to the appointee, and to require the latter to take an
oath of office. All these must have given petitioner the opportunity to know
and realize that her new appointment as Bookbinder II was temporary and
not permanent in nature. She was not forced to accept the promotion. Since
the new position of Bookbinder II would be more beneficial to her in terms of
remuneration, she is fact accepted the same on her own free will. As aptly
stated in the case of Dosch vs. National Labor Relations Commission:17

"There is no law that compels an employee to accept a promotion, as a

promotion is in the nature of a gift or reward, which a person has a
right to refuse. When petitioner refused to accept his promotion as
Director of International Sales, he was exercising a right and he cannot
be punished for it as qui jure suo utitur neminem laedit. He who uses
his own legal right injures no one."

With regard to the second issue as to whether or not respondent Court of

Appeals erred in arbitrarily disregarding the constitutional right of petitioner
to security of tenure, it appears that the temporary employment of petitioner
as Bookbinder II was validly terminated. Petitioner's contention that she
should be reinstated to her former position as Utility Worker is untenable.
Petitioner Pabu-aya, by having accepted the temporary appointment of
Bookbinder II, means that she had abandoned or given up her former
position of Utility Worker. Her appointment as Bookbinder II on September
16, 1991, being temporary in character, was terminable at the pleasure of
the appointing power with or without cause. The letter of petitioner, dated
October 23, 1992,18 expressing regret over her own less than satisfactory
performance and promising to improve her work should her appointment be
renewed, also implies that there were valid reasons for the proper
authorities not to renew her temporary appointment as Bookbinder II which
expired on September 16, 1992. Besides, pursuant to Section 13 (b)
Omnibus Rules Implementing Book V of the Administrative Code of 1987, a
temporary appointment shall not exceed twelve (12) months.

As regards the third issue of whether or not respondent Court of Appeals

erred in holding that petitioner was guilty of laches, the record shows that
petitioner Pabu-aya did not appeal from respondent Commission's
Resolution No. 94-0437 dated January 20, 1994 dismissing her appeal from
Vice-Governor Romeo J. Gamboa's Memorandum dated October 16, 1992
terminating her temporary employment as Bookbinder II. Quoted below is
the pertinent portion of the Decision of the Court of Appeals, to wit:
 118

And the Commission, per Resolution No. 94-0437 dated January 20,
1994 dismissed her appeal, by stating:

"Ms. Editha Pabu-aya, former Bookbinder, Sangguniang

Panlalawigan Office, Bacolod City, appeals from the
Memorandum dated October 16, 1992 of the Vice Governor,
Bacolod City, terminating her temporary appointment.

"It appears from the records that Pabu-aya was appointed in a

temporary capacity as Bookbinder II on September 16, 1991.
Pursuant to Section 13 (b) Omnibus Rules Implementing Book V
of Administrative Code of 1987, temporary appointment shall not
exceed twelve (12) months. Thus, Editha Pabu-aya, being a
temporary appointee, has no security of tenure. Non-renewal of a
temporary appointment after the expiration of the twelve (12)
month period is a valid mode of termination.

"WHEREFORE, foregoing premises considered, the Commission

hereby resolves to dismiss the appeal of Ms. Editha Pabu-aya for
lack of merit."

And petitioner did not appeal from the Civil Service Commission's
Resolution No. 94-0437, leaving the resolution to become final and
executory.19

In sum, we find no reversible error in the challenged Decision of respondent

Court of Appeals.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

G.R. No. 138780       May 22, 2001

NORBERTO ORCULLO, JR., petitioner,

vs.
CIVIL SERVICE COMMISSION and COORDINATING COUNCIL OF THE
PHILIPPINE ASSITANCE PROGRAM, respondents.

KAPUNAN, J.:

Petitioner Norberto A. Orcullo, jr. was hired as Project Manager IV by the

Coordinating Council of the Philippine Assistance Program (CCPAP)-BOT
Center effective march 11, 1996. His employment was contractual and co-
terminous with the said project which was to end on January 30, 2000.1 On
September 23, 1996 or six (6) months from his assumption to office,
petitioner received a Memorandum, dated September 20, 1996, from one
 119

Jorge M. Briones, Assistance Director of CCPAP, terminating petitioner's

contractual employment with said agency effective September 30, 1996.2

In a Letter dated September 20, 1996, Undersecretary Francisco F. del

Rosario, Executive Director of CCPAP, confirmed petitioner's termination as
project manager of CCPAP.

Aggrieved by his dismissal, petitioner appealed the same to the Civil

Service Commission (CSC).

On April 2, 1997, the respondent CSC issued resolution No. 972309

dismissing petitioner's appeal. The CSC found that:

xxx the appointment of Orcullo is contractual and co-terminous with the

Philippine Assistance Program Support Project and that it carries the
stipulated condition "Unless terminated sooner." The latter condition
has not been qualified by any safeguard. Appellant Orcullo, when he
accepted said contractual-co-terminous anytime. He is, thus, not
protected by the security of tenure clause of the Constitution. The
contract is the law between the parties. And whatever is stipulated
therein governs the relationship between the parties. Said stipulations
in the contract may include the mode or manner of separations. And
the cause therefore includes and is not proscribed to derogatory
record, misbehavior or incompetence or hostile attitudes. In the instant
case, appellant was separated from the service particularly for
unsatisfactory performance. (Underscoring ours)

On the issue of the proper official who should effect such termination,
the next lower official who should effect such termination, the next
lower official of the Center may do so. In this case, said separation was
later validated by the confirmation of the head office.3

Petitioner filed a motion for reconsideration of the above resolution. On June

17, 1997, the CSC denied said motion in its Resolution No. 973099.

On July 30, 1997, petitioner, through counsel, filed a petition for review with
the Court of Appeals.

On August 14, 1998, the Court of Appeals rendered a decision, the

dispositive portion of which reads as follows:

WHEREFORE, for lack of merit, the petition in the above entitled case
is hereby DISMISSED. Costs against petitioner.

SO ORDERED.
 120

Hence, this petition. Petitioner raises the sole issue of whether employees in
the public service, regardless of their status of employment, are protected
by the tenurial security right embodied in the Constitution.

Petitioner argues that, contrary to the findings of the CSC, the phrase
"unless terminated sooner" refers not to the duration of his employment, but
the duration of the PAPS support project itself. He claims that since the
PAPS project was still ongoing, his services cannot be terminated without
just cause and without the observance of due process. He asseverates that
even co-terminous employees like himself enjoy security of tenure as
embodied in the Constitution.

Petitioner's arguments are bereft of merit.1âwphi1.nêt

It is undisputed that petitioner's employment with CCPAP is contractual and

co-terminous in nature. Such a co-terminous employment falls under the
non-career service classification of positions in the Civil Service:

Sec. 9. Non-Career Service. - The Non-Career Service shall be

characterized by (1) entrance on bases other that those of the usual
tests of merit and fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous
with that of the appointing authority or subject to his pleasure, or which
is limited to the duration of a particular project for which purpose
employment was made. (Underscoring ours)

The Non-Career Service shall include:

xxx

(4) Contractual personnel or those whose employment in the

government is in accordance with a employment in the
government is in accordance with a special contract to undertake
a specific work or job, requiring special or technical skills not
available in the employing agency, to be accomplished within a
specific period, which in no case shall exceed one year, and
performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from
the hiring agency.

xxx5

Additionally, Section 14 of the Omnibus Rules Implementing Book V of

Executive Order No. 292 provides:

Sec. 14. An appointment may also be co-terminous which shall be

issued to a person whose entrance and continuity in the service is
 121

based on the trust and confidence of the appointing authority or that

which is subject to his pleasure, or co-existent with his tenure, or
limited by the duration of project or subject to the availability of
funds. (Underscoring ours)

The co-terminous status may thus be classified as follows:

(1) Co-terminous with the project - when the appointment is co-existent

with the duration of a particular project for which purpose employment
was made or subject to the availability of funds for the same;

(2) Co-terminous with the appointing authority - when appointment is

co-existent with the tenure of the appointing authority or at his
pleasure;(Underscoring ours)

(3) Co-terminous with the incumbent - when the appointment is co-

existent with the appointee, in that after the resignation, separation or
termination of the services of the incumbent the position shall be
deemed automatically abolished; and

(4) Co-terminous with a specific period - appointment is for a specific

period and upon expiration and upon thereof, the position is deemed
abolished.

A perusal of petitioner's employment contract will reveal that his

employment with CCPAP is qualified by the phrase "unless terminated
sooner." Thus, while such employment is co-terminous with the PAPS
project, petitioner nevertheless serves at the pleasure of the appointing
authority as this is clearly stipulated in his employment contract. We agree
with the appellate court's interpretation of the phrase "unless terminated
sooner" to mean "that his contractual job as Project Manager IV from March
11, 1996 to January 30, 2000 could end anytime before January 30, 2000 if
terminated by the other contracting party-employer CCPAP." We quote with
approval said court's ruling on the matter, thus:

xxx. The employment contract is written in plain and unambiguous

language. With petitioner's stature, he could not have misunderstood it.
Petitioner cannot now renege from the stipulation invoking security of
tenure under the Constitution and the Civil Service Law. The fact is he
belongs to the non-career service whose appointment is co-terminous,
meaning his entrance and continuity in the service is based on trust
and confidence of the appointing power.6 (underscoring ours)

Granting arguendo that said disputed phrase refers not to the duration of

petitioner's employment, but to the project itself, nevertheless, petitioner
was validly terminated for cause. The records will show that petitioner
garnered an unsatisfactory rating during the probationary period of his
 122

employment.7 After due notice, he was subsequently dismissed because of

his inability to work with the other staff members of the project and to
participate effectively in meetings regarding the project, resulting in loss of
trust in him by his superiors. The much can be gleaned form the
Memorandum as follows:

This is to confirm my verbal advise to you made last 4 September 1996

regarding your unsatisfactory performance during the probationary
period of your contractual employment with the CCPAP BOT Center.

As advised, your inability to work with the other staff in the Center as

well as participate in outside meetings are the main reasons for the
rating which have resulted in the loss of my confidence in your ability to
do your job as a Manager. (Underscoring supplied)

xxx8

Finally, we find petitioner's claim that he was deprived of due process

unavailing. The Court of Appeals found that petitioner was informed of his
unsatisfactory performance in his job as project manager about two weeks
prior to his termination. Thereafter, upon receipt of the memorandum
terminating his services, petitioner filed a complaint-appeal to the CSC.
When the CSC affirmed his dismissal in its Resolution, dated April 2, 1997,
petitioner filed a motion for reconsideration thereof. Thus, he cannot now
claim that he was not given the opportunity to be heard.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED for

lack of merit.

SO ORDERED.

G.R. No. 139821            January 30, 2002

DR. ELEANOR A. OSEA, petitioner,

vs.
DR. CORAZON E. MALAYA, respondent.

YNARES-SANTIAGO, J.:

This is a petition for review from the decision of the Court of Appeals dated
August 6, 1999 in CA-G.R. SP No. 49204.1

On November 20, 1997, petitioner filed Protest Case No. 91120-004 with
the Civil Service Commission.2 She averred that she was appointed as
Officer-in-Charge, Assistant Schools Division Superintendent of Camarines
Sur, by then Secretary Ricardo T. Gloria of the Department of Education,
Culture and Sports, upon the endorsement of the Provincial School Board of
 123

Camarines Sur; that despite the recommendation of Secretary Gloria,

President Fidel V. Ramos appointed respondent to the position of Schools
Division Superintendent of Camarines Sur; that respondent's appointment
was made without prior consultation with the Provincial School Board, in
violation of Section 99 of the Local Government Code of 1991. Hence,
petitioner prayed that respondent's appointment be recalled and set aside
for being null and void.

The pertinent portion of Section 99 of Republic Act No. 7610, also known as
the Local Government Code of 1991, states:

Sec. 99. Functions of Local School Boards. --- The provincial, city or

municipal school board shall:

xxx           xxx           xxx.

The Department of Education, Culture and Sports shall consult the

local school boards on the appointment of division superintendents,
district supervisors, school principals, and other school officials.

On March 31, 1998, the Civil Service Commission issued Resolution No.
980699, dismissing petitioner's protest-complaint.3 The Civil Service
Commission found that on September 13, 1996, President Ramos
appointed respondent, who was then Officer-in-Charge Schools Division
Superintendent of Iriga City, as Schools Division Superintendent without any
specific division. Thus, respondent performed the functions of Schools
Division Superintendent in Iriga City. Subsequently, on November 3, 1997,
Secretary Gloria designated respondent as Schools Division Superintendent
of Camarines Sur, and petitioner as Schools Division Superintendent of Iriga
City.4

In dismissing petitioner's protest, the Civil Service Commission held that

Section 99 of the Local Government Code of 1991 contemplates a situation
where the Department of Education, Culture and Sports issues the
appointments, whereas respondent's appointment was made by no less
than the President, in the exercise of his appointing power. Moreover, the
designation of respondent as Schools Division Superintendent of Camarines
Sur and of petitioner as Schools Division Superintendent of Iriga City were
in the nature of reassignments, in which case consultation with the local
school board was unnecessary.

Petitioner filed a Motion for Reconsideration with the Civil Service

Commission.5 On August 3, 1998, the Civil Service Commission issued
Resolution No. 982058, denying petitioner's Motion for Reconsideration.6

Thus, petitioner filed a petition for review of both Civil Service Commission
Resolution Nos. 980699 and 982958 dated August 3, 1998, respectively,
 124

before the Court of Appeals, docketed as CA-G.R. SP No. 49204.7 On

August 6, 1999, the Court of Appeals dismissed the petition.

Hence, the instant petition for review on certiorari of the August 6, 1999
Decision on the following errors:

I. THE HONORABLE COURT OF APPEALS ERRED IN DECIDING

THAT THE RESPONDENT WAS MERELY RE-ASSIGNED TO
CAMARINES SUR AND DID NOT REQUIRE THE MANDATORY
PRIOR CONSULTATION WITH THE LOCAL SCHOOL BOARD
UNDER SECTION 99 OF RA 7160.

II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE

REVERSIBLE ERROR WHEN IT DECIDED THAT THERE WAS NO
OPPOSITION MADE WHEN THE PRESIDENT APPOINTED
RESPONDENT MALAYA AS DIVISION SCHOOLS
SUPERINTENDENT BACK IN 1996 AND AS STATED BY THE CIVIL
SERVICE COMMISSION THE LAW DID NOT CONTEMPLATE THAT
THE PRESIDENT SHOULD FIRST CONSULT THE LOCAL SCHOOL
BOARD BEFORE HE MAKES ANY APPOINTMENT AND THAT
SECTION 99 OF THE NEW LOCAL GOVERNMENT CODE APPLIES
ONLY TO THE Department of Education, Culture and Sports
SECRETARY, WHO, HOWEVER, CAN ONLY MAKE
RECOMMENDATION TO THE PRESIDENT.8

The petition lacks merit.

Clearly, the afore-quoted portion of Section 99 of the Local Government

Code of 1991 applies to appointments made by the Department of
Education, Culture and Sports. This is because at the time of the enactment
of the Local Government Code, schools division superintendents were
appointed by the Department of Education, Culture and Sports to specific
division or location. In 1994, the Career Executive Service Board issued
Memorandum Circular No. 21, Series of 1994, placing the positions of
schools division superintendent and assistant schools division
superintendent within the career executive service. Consequently, the
power to appoint persons to career executive service positions was
transferred from the Department of Education, Culture and Sports to the
President.9 The appointment may not be specific as to location. The
prerogative to designate the appointees to their particular stations was
vested in the Department of Education, Culture and Sports Secretary,
pursuant to the exigencies of the service, as provided in Department of
Education, Culture and Sports Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of

respondent to the Schools Division Superintendent position on September
 125

3, 1996 did not specify her station.10 It was Secretary Gloria who, in a
Memorandum dated November 3, 1997, assigned and designated
respondent to the Division of Camarines Sur, and petitioner to the Division
of Iriga City.11

We agree with the Civil Service Commission and the Court of Appeals that,
under the circumstances, the designation of respondent as Schools Division
Superintendent of Camarines Sur was not a case of appointment. Her
designation partook of the nature of a reassignment from Iriga City, where
she previously exercised her functions as Officer-in-Charge-Schools
Division Superintendent, to Camarines Sur. Clearly, therefore, the
requirement in Section 99 of the Local Government Code of 1991 of prior
consultation with the local school board, does not apply. It only refers to
appointments made by the Department of Education, Culture and Sports.
Such is the plain meaning of the said law.

The "plain meaning rule" or verba legis in statutory construction is thus

applicable in this case. Where the words of a statute are clear, plain
and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation.12

Appointment should be distinguished from reassignment. An 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.13

On the other hand, a reassignment is merely a movement of an employee

from one organizational unit to another in the same department or agency
which does not involve a reduction in rank, status or salary and does not
require the issuance of an appointment.14 In the same vein, a designation
connotes merely the imposition of additional duties on an incumbent
official.15

Petitioner asserts a vested right to the position of Schools Division

Superintendent of Camarines Sur, citing her endorsement by the Provincial
School Board. Her qualification to the office, however, lacks one essential
ingredient, i.e., her appointment thereto. While she was recommended by
Secretary Gloria to President Ramos for appointment to the position of
Schools Division Superintendent of Camarines Sur, the recommendation
was not acted upon by the President. Petitioner's designation as Officer-in-
Charge, Assistant Schools Division Superintendent, was expressly made
subject to further advice from the Department of Education, Culture and
Sports.16 Thus, her designation was temporary. In fact, there was a need to
recommend her to the President for appointment in a permanent capacity.
 126

Inasmuch as she occupied her position only temporarily, petitioner can be

transferred or reassigned to other positions without violating her right to
security of tenure.17 Indeed, petitioner has no vested right to the position of
Schools Division Superintendent of Camarines Sur.

WHEREFORE, in view of the foregoing, the instant petition is DENIED for

lack of merit. The assailed decision of the Court of Appeals in CA-G.R. SP
No. 49204, as well as Resolutions 980699 and 982058 of the Civil Service
Commission, are AFFIRMED.

SO ORDERED.

G.R. No. L-30773 February 18, 1970

FELIXBERTO C. STA. MARIA, petitioner,

vs.
SALVADOR P. LOPEZ, THE BOARD OF REGENTS OF THE
UNIVERSITY OF THE PHILIPPINES, and NEMESIO
CERALDE, respondents.

V.E. del Rosario and Associates and Atienza, Tabora & del Rosario for
petitioner.

Office of the Solicitor General Felix V. Makasiar, Solicitor Bernardo P.

Pardo and Special Counsel Perfecto V. Fernandez for respondents
Salvador Lopez, et al.

Crispin D. Baizas for respondent Nemesio Ceralde.

SANCHEZ, J.:

Directly under attack in this an original action for certiorari, prohibition

and mandamus is the validity of the transfer of petitioner Felixberto C.
Sta.Maria from his post of Dean, College of Education, University of the
Philippines (UP), to the Office of respondent UP President Salvador P.
Lopez, there to become Special Assistant in charge of public information
and relations.

Petitioner, a professor of English and Comparative Literature (formerly Dean

of the UP College in Baguio), was elected Dean of the College of Education
on May 5, 1967 by the Board of Regents, on nomination of the UP
President. His appointment as such Dean was for a five year term, "effective
May 16, 1967 until May 17, 1972, unless sooner terminated, with all the
rights and privileges as well as the duties and obligations attached to the
 127

position in accordance with the rules and regulations of the University and
the Constitution and laws of the Republic of the Philippines.

The issues in this case can be better understood if framed in its proper
setting, viz:

As far back as February 11, 1969, the graduate and undergraduate students
of the UP College of Education presented to President Salvador P. Lopez a
number of demands having a bearing on the general academic
program1 and the physical plant and services,2 with a cluster of special
demands.3 In response, President Lopez created a committee composed of
eight graduate students, two undergraduate students, and four faculty
members. This committee met 9 times with Dean Sta. Maria in February
and March 1969. On March 17, 1969, Dean Sta. Maria gave President
Lopez a written summary of the dialogues he had with the committee and
enumerated in connection with the demands, the steps taken,4 the steps
being taken5 and the steps ito be taken in consultation with the faculty.6 He
also recommended to the UP President the following: a more adequate
budget responsive to the needs of the college, taking into account its
expanding graduate program; improvement of the library service in terms of
a better book collection and more adequate space and reading rooms,
particularly for graduate students; appointment of more faculty members on
the senior level to handle the large graduate program, and to meet the acute
need for more graduate advisers, critics, and committee members;
improvement of the water system of the college; improvement of the
physical plant of the college, including its classrooms, offices, toilets,
sidewalks and surrounding landscape; and construction of a graduate
students' dormitory.

But the students were not to be appeased. For, Dean Sta. Maria, according
to them, did not act on some of their demands. Respondents herein have
stressed that in the meetings of the education graduate committee, Dean
Sta. Maria neither included in the agenda nor consulted the faculty about
the students' demands on "foreign language proficiency examination" and
on "research and thesis writing pressures". They have brought out the fact
that many members of the faculty shared the students' grievances on the
absence of definite standards and procedures on academic work, including
teaching load, administrative and committee assignments, faculty
evaluation, and favoritism and discrimination.

On July 16, 1969, Adelaida E. Masuhud, President of the UP Graduate

Education Student Organization., led a group who visited President Lopez
and submitted to him a progress report on the students' demands taken up
with Sta. Maria since March 26, 1969. She acknowledged that the dean had
granted ten demands7 but deplored the fact that the dean had ignored the
following; submission to the faculty for decision, of the demand for abolition
 128

of foreign language requirements and comprehensive examinations; fixing

the criteria for selection, admission, appointment and promotion of faculty
members; formulation of clear-cut policies on thesis advising, faculty
teaching load, and faculty membership on standing committees; and
appointment of a permanent director for the Graduate Education Studies of
the SPED Program. She thus stated: "I appreciate the efforts of the Dean in
acting On some of our demands. However, the Dean has failed to take
further action on the demands that have far reaching implications for the
students, faculty and the College as a whole. As a consequence problems,
confusion and demoralization of students and faculty have cropped up anew
in the college."

The students threatened to boycott their classes the next day, July 17.
President Lopez asked that they desist, suggested that they instead attend
a student-faculty meeting the next day in his office.

But on July 17, the Education Graduate Student Organization boycotted

their classes just the same. The President met the striking students'
representatives and the faculty members of the College of Education.
Charges of favoritism were allegedly hurled by some of the faculty members
against Sta. Maria. On the other hand, the dean offered to sit down with the
students.The latter, however, refused to enter into a dialogue unless he (the
dean) were first ousted.

In a separate development, the faculty members of the College of Education

convened in the afternoon of July 22. They resolved, amongst others, to
recognize the right of a college dean to his position from which he cannot be
removed unless for cause (44 in favor, 2 abstained), and not to endorse the
students' demand for the forced resignation of Sta. Maria (36 in favor, 5
against, 3 abstained).

The boycott fever infected other colleges. On July 22, 1969, the newly
installed members of the UP Student Council voted to support the education
students' strike. The next day, July 23, the main avenues leading to the
university gates were barricaded, buses denied entrance, and students
cajoled into joining the strike. It was thus on that day that all academic
activity in the university came to a complete stand still. In the morning of
July 23, at 10:00 o'clock, the UP President called a meeting of the faculty of
the College of Education. Those present gave him a vote of confidence (40
in favor, 7 abstained) to resolve the issue on hand as he sees fit.

Armed with the vote of confidence of the education faculty, on the same
day, July 23, 1969, President Lopez issued the transfer order herein
challenged, Administrative Order 77. That order, addressed to Dean Sta.
Maria, reads:
 129

By special authority vested in me by the Board of Regents and

pursuant to the Civil Service Law and the University Code, you
are hereby transferred from the College of Education to the Office
of the President as Special Assistant8 with the rank of Dean,
without reduction in salary, in the interest of the service.

This transfer involves your administrative position only and in no

way affects your status as professor of the University.

This order shall take effect immediately.

Simultaneously, President Lopez appointed ad interim Professor Nemesio

R. Ceralde as "acting Dean of the College of Education, without additional
compensation, effective July 23, 1969".

President Lopez was to explain in a press statement of July 23, 1969 that
he "cannot permit the continued disruption of the academic life of the
institution"; that the transfer order was made "[i]n the interest of the service"
and "as an emergency measure" because the meetings with the faculty,
students, Sta. Maria and the UP President had "proved fruitless in the face
ofthe refusal of the College of Education students to discuss any further
their demands unless and until Dean Sta. Maria resigns his position"; and
that, therefore, "the complete shut-down of classes in the Diliman campus
has compelled" him to "transfer Dean Sta. Maria to other duties".

Having received the transfer order on the same day, July 23, Sta. Maria
forthwith wrote a letter, which he himself hand carried to President Lopez,
requesting that "(a) a formal investigation be conducted by the Board of
Regents on the circumstances which led to the promulgation of the above
order, and on the basis thereof; and (b) said order be reconsidered and set
aside forbeing manifestly unjust, unfair, unconstitutional, and contrary to
law, and, therefore, null and void."

The next day, July 24, Sta. Maria announced to the education students and
faculty, through Memorandum 17, that the transfer order "is now the subject
of a pending request for reconsideration ... and, for this reason, its effectivity
is necessarily suspended", and that he shall continue "to be the Dean ...
pursuant to his appointment as such for the period from January 1, 1968 to
May 15, 1972."

On July 25, 1969, the education faculty signed a "Declaration of Concern"

stating, amongst others, that when they gave President Lopez a vote of
confidence, they "did so in the belief and confidence that he ... will uphold
the democratic processes in the solution of the problem and will respect the
fundamental rights of the individual." Similar declarations of concern came
from the faculties of law, medicine, arts and sciences, and nursing.
 130

At President Lopez' request, a special meeting of the Board of Regents was

held on July 25, 1969. President Lopez there reported Dean Sta. Maria's
transfer and Professor Ceralde's ad interim appointment as Acting Dean of
the College of Education. He told the board that because of "failure of
leadership in the College of Education, a crisis of confidence emerged in
that institution"; that the ultimate result was the boycott of classes by the
students "starting on July 17, 1969 in protest against the inaction of Dean
Sta. Maria on their demands submitted months ago"; and that this situation
impelled him to issue Administrative Order 77 "as demanded by the
prevailing crisis."

The board confirmed Dean Sta. Maria's transfer and Professor Ceralde's
appointment, considered as premature Sta. Maria's Memorandum 17
heretofore mentioned, but gave due course to his plea for reconsideration
and granted him a chance to be heard at the next board meeting on July 29,
1969.

In the said meeting of July 29, Sta. Maria did not personally appear. He sent
his counsel who manifested that Sta. Maria was not recognizing the board's
jurisdiction unless, without further hearing, the board first revoke the transfer
order. The board resolved: "... to take cognizance and consider as a new
petition of Dean Sta. Maria, submitted through counsel, his declaration that
the efficacy of the President's Administrative Order No. 77 transferring him
should first be suspended by the Board and held in abeyance as a
prerequisite f or the hearing being prayed for. In this connection, Dean Sta.
Maria will be asked to file a Memorandum with the Board in support of his
new petition."

The foregoing had been the developments when Sta. Maria filed the present
petition for certiorari, prohibition and mandamus in this Court on July 31,
1969 against respondents Salvador P. Lopez, the Board of Regents and
Nemesio R. Ceralde.

The case is now ripe for decision.

1. Discussion of the issues herein involved necessarily has to start with the
examination of the terms of employment, the covenant which binds
petitioner with the university. The contract, it bears repeating, stipulates that
the dean's five-year term is qualified by the clause: "unless sooner
terminated, with all the rights and privileges as well as the duties and
obligations attached to the position in accordance with the rules and
regulations of the University and the Constitution and laws of the Republic
of the Philippines." The authority for this appointment is found in Article 79
of the university code providing that "[t]he term of office of all deans ... shall
be five years from the date of their appointment without prejudice to
reappointment and until their successors shall have been appointed.
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We first look into the meaning of the phrase "unless sooner terminated"
embodied in the contract of employment. Right at the start, it would seem to
us that the term "unless sooner terminated" cannot be equated or tied up
with some such terms as "terminable at will", or "removable at pleasure".

A number of reasons there are why petitioner may not be removed at

pleasure before the expiry of his term. First. Petitioner's contract of
employment has a fixed term of five years. It is not an appointment in an
acting capacity.9 Nor is petitioner's designation that of an officer-in-charge
as it is known in administrative practice. Second. Nothing in the rules and
regulations of the university or its charter would indicate that a college dean
appointed with a term can be separated without cause. On the contrary,
reason there is to be believe that the university policy points quite to the
contrary. An instance is the resolution of the Board of Regents of June 14,
1961, fixing the term of office of the UP President. It was there stated that
"uncertainty of tenure and frequency of change in the incumbent of the
position are not for the best interests of the University." This concept is self-
evident. Third. Again, there is nothing either in the UP charter or code
empowering the UP President or the Board of Regents to insert such a
clause — unless sooner
terminated — as would authorize dismissal at will. Fourth. As this Court,
in Lacson vs. Roque, 92 Phil. 456, 463, ruled, "strict construction of law
relating to suspension and removal, is the universal rule." Petitioner, with a
definite term of employment, may not thus be removed except for cause.
The reasons being that the removal was not expressly declared to be
exercisable at pleasure or at will; and that the fixity of the term of office
gives rise to the inference that he may be removed from office only for
misbehavior as to which he shall be entitled to notice and hearing. As was
well pointed out in Lacson vs. Roque, "[a]n inferential authority to remove at
pleasure can not be deduced, since the existence of a defined term, ipso
facto negatives such an inference and implies a contrary
presumption, i.e., that the incumbent shall hold office to the end of his term
subject to removal for cause." 10

The foregoing paves the way for the consideration of what we believe is the
overriding question: Was Sta. Maria removed?

2. Respondents stand on the premise that Sta. Maria was not removed; he
was just temporarily assigned to another position.

We may well start with the statement that a dean of a UP college holds a
non-competitive or unclassified civil service position. 11 As such, and upon
the provisions of his contract of employment, he is protected by
constitutional and statutory provisions on security of term. 12 He cannot be
removed during the term except for cause and after prior hearing and
 132

investigation. 13 Which requisites are also embodied in the university

charter 14 and in the university code." 15

But is there really need for a formal prior hearing? No need, respondents
say. For, the Civil Service Law requires prior hearing only in cases of
removal, dismissal or suspension. Sta. Maria, respondents underscore, was
not suspended, dismissed or removed; he was merely transferred to
another position without reduction in salary or rank in the interest of public
service. 16 Respondents proceed to aver that the transfer was neither
disciplinary nor punitive. 17 A promotion, so they claim, because in the new
position he would be an officer of the university not just of one college; 18 he
would enjoy a rank at par with senior college deans; 19 and that he would be
in line for one of the vice-presidencies of the university. 20 Respondents also
say that such transfer was an emergency measure to stave off a crisis that
gripped the campus — the paralyzing disruption of classes. 21 They
emphasize that there was an urgent and genuine need for petitioner's
talents and services in the newly created Public Affairs and University
Relations Office.

Quite interesting it is to inquire whether Dean Sta. Maria was transferred,

promoted, demoted, or removed without his consent.

3. A transfer is a "movement from one position to another which is of

equivalent rank, level or salary, without break in service." 22 Promotion is the
"advancement from one position to another with an increase in duties and
responsibilities as authorized by law, and usually accompanied by an
increase in salary." 23

A transfer that results in promotion or demotion, advancement or

reduction 24 or a transfer that aims to "lure the employee away from his
permanent position", cannot be done without the employee's consent. 25 For
that would constitute removal from office. Indeed, no permanent unless the
officer or employee is transfer can take place unless the officer of the
employee is first removed from the position held, and then appointed to
another position. 26

When an officer is reduced in rank or grade and suffers a big cut in pay, he
is demoted; 27 and when he is demoted, he is removed from office. 28 But a
demotion means something more than a reduction in salary: there may be a
demotion in the type of position though the salary may remain the
same. 29 A transfer that aims by indirect method to terminate services or to
force resignation also is removal. 30

4. Concededly transfers there are which do not amount to removal. Some

such transfers can be effected without the need for charges being preferred,
without trial or hearing, and even without the consent of the employee.
 133

The clue to such transfers may be found in the "nature of the

appointment." 31 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. 32

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. 33 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. 34 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. 35 Neither does illegality
attach to the transfer or reassignment of an officer pending the
determination of an administrative Charge against him; 36 or to the transfer
of an employee from his assigned station to the main office, effected in good
faith and in the interest of the service pursuant to Section 82 of the Civil
Service Act. 37

5. The next point of inquiry is whether or not Administrative Order 77 would

stand the test of validity vis-a-vis the principles just enunciated.

That the university is vested with corporate powers exercised by the board
of regents and the President is a proposition which is not open to
question. 38 The board, upon recommendation of the President, is clothed
with authority to hire and fire after investigation and hearing. 39 The
President, on the other hand, may fill vacancies temporarily, 40 transfer
faculty members 41 from one department to another, 42 and make
arrangements to meet emergencies occurring between board meetings so
that the work of the university may not suffer. 43

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.

A line of distinction must be drawn between the office of dean and that of
professor, say, of English and Comparative Literature. A professor in the
latter capacity may be assigned to handle classes from one college to
another or to any other unit in the university where English is offered. He
may even be transferred from graduate school to undergraduate classes.
He cannot complain if such was done without his consent. He has no fixed
station. 44 As for him, it can always be argued that the interests of the
service are paramount.
 134

But a college dean holding an appointment with a fixed term stands on a

different plane. He cannot, without his consent, be transferred before the
end of his term. He cannot be asked to give up his post. Nor may he be
appointed as dean of another college. Much less can he be transferred to
another position even if it be dignified with a dean's rank. 45

6. We now come to the problem of whether or not petitioners transfer from

the College of Education to the Office of the President as special assistant
with the rank of dean without reduction in salary was permanent. Facts
there are which would show that far from being a temporary measure,
petitioner's transfer was in fact a removal.

Respondent university president himself admitted that the transfer order

was an ad interim appointment. That the transfer was a removal has been
confirmed by the UP President's reference to Sta. Maria's deanship of the
College of Education as his "former position". This plainly indicates that Sta.
Maria ceased to be dean of the college. Thus:

The validity of Dean Sta. Maria's designation or appointment as

Special Assistant to the President rests upon two acts:

(a) The transfer order of July 23, 1969, which operates as an ad
interim appointment under Art. 44(e) of the Revised U.P. Code;
and

(b) The confirmation on such appointment by the Board of

Regents in its special meeting on July 25, 1969. 46

And again:

The position of Special Assistant to the President with the rank of

Dean carries equal, if not higher, rank than the position of Dean of
the College of Education. As Special Assistant to the President,
Dean Sta. Maria has become an officer of the University while in
his former position, he was merely an officer of the college in the
University. 47

Not that the foregoing stand alone. The reasons advanced by respondents
to justify such transfer are quite revealing. They pictured Sta. Maria as a
bungling administrator, incompetent, inefficient, unworthy, a miscast. They
averred that he did not act on the petitions and grievances of graduate
students; that he caused widespread dissatisfaction amongst faculty
members and students because of his "inaction", his "lack of sincerity and
candor in dealing" with them, that he was guilty of "inflexible arrogant
attitude and actuation" as dean; that he miserably failed to avert a boycott
that was caused by a "crisis of confidence" and "failure of leadership" in his
college; that he abandoned his post when he was most needed; that he
 135

refused to accept solutions even as he failed to advance his own to mitigate

the crisis; that in sum, he was a miscast in the College of Education. 48 Of
course, these are merely charges. But they collectively reflect the thinking of
respondents toward petitioner. In the picture thus presented, it would not be
unreasonable to say that Sta. Maria's transfer was with the character of
permanence to take him away from his duties and responsibilities as dean,
in all of which allegedly he was a failure.

And if more were needed to show that the transfer of Sta. Maria was
permanent, there is the fact that Nemesio Ceralde was appointed "ad
interim" acting dean of the College of Education. And, Ceralde's
appointment was confirmed by the Board of Regents on July 25, 1969.
Again, there is respondent's averment that petitioner's new position as
special assistant to the President could be a stepping-stone to a higher
position — that of Vice Presidency of the university. Were his appointment
but temporary, there would be no occasion to say that he could be elevated
to another position of a higher category.

More than this, the transfer was a demotion. A demotion, because: First,

Deanship in a university, being an academic position which requires
learning, ability and scholarship, is more exalted than that of a special
assistant who merely assists the President, as the title indicates. The
special assistant does not make authoritative decisions. Second. The
position of dean is a line position where the holder makes authoritative
decisions in his own name and responsibility. A special assistant does not
rise above the level of staff position. Third. The position of dean is created
by law, the university charter, and cannot be abolished even by the Board of
Regents. That of special assistant, upon the other hand, is not so provided
by law; it was a creation of the university president.

It will not avail respondents any to say that Sta. Maria retained "the rank of
Dean". In actual administrative practice, the terms "with rank of" dean is
meaningless. He is no dean at all. He of course, basks, in the trappings of
the dean. A palliative it could have been intended to be. But actually he is a
dean without a college.

7. Respondents nonetheless insist that the "interest of the service" is the

primary reason for the transfer. They say that there was an urgent need to
bring the academic life of the university back to normal and Sta. Maria's
transfer was the only feasible solution. They point to the need for petitioner's
services in the Office of Public Affairs and University Relations purportedly
"to improve the relations of the University with its various constituencies."
They cling to the principle of "least sacrifice. 49 They urge that only three
options were left to the university, namely: to keep Sta. Maria at all costs
and risk an indefinite paralysis of the university life; to give due course to the
charges filed against Sta. Maria, preventively suspend him during the
 136

investigation, and after hearing dismiss him if the evidence so warrants; and
to transfer him as a non-disciplinary measure in the interest of the service.
Respondents claim that the first option was out of the question. The reason
they give is that the university could not afford an indefinite disruption of
academic life. To respondents, the second was feasible but distasteful —
the administration was in no mood to prejudice Sta. Maria through a
proceeding that would reflect on his record. So the university administration
opted for the third method, a solution said to be the most convenient and
expeditious and based on the principle of "least sacrifice".

Implicit in the university's stand is that Dean Sta. Maria had to be uprooted
from his position as a price to buy the peace of the students and induce
them to return to their classes. Such could have been an easy way to climb
out of difficulties. But transfer could be but a ploy to cover dismissal. And
dismissal cannot be justified on grounds of expediency. Appropriately to be
remembered here is that due process is associated with the sporting idea of
fair play; 50 it shuns oppression and eschews unfair dealing; it obeys the
dictates of justice and is ruled by reason. The Scriptures no less remind us
to hear before we condemn. 51 Fidelity to this cardinal principle must have
impelled Congress, just recently, to clarify the authority to transfer
subordinate officers and employees, an authority so often misused and
abused to ride roughshod over hapless civil servants. As amended, the Civil
Service Law provides that "if the employee believes that there is no
justification for the transfer, he may appeal his case ... and pending his
appeal and decision thereon, his transfer shall be held in abeyance." This
was intended to fortify the protective wall built around the employee's right
to security of tenure, to guard against unbridled encroachments
masquerading in the "interest of the service". And, to think that this
amendment came just a few days after Sta. Maria was transferred without
prior hearing.

The current climate of activism of the young people, recognized to be

worldwide, whether on or off campus, is a phenomenon in this country that
commands attention. Demonstrations and boycotts which are
manifestations of such activism are constitutionally protected. But there are
limits. A fundamental precondition to the exercise of such rights, we
perceive, is that the activity should not impair the rights of others whose
roots are as deep and as equally protected by iron-clad guarantees. A high
regard to a man's dignity is the hallmark of our law.

The students demanded Sta. Maria's ouster. The President of the university
acceded to their demand. But Sta. Maria's right to be removed only, in the
words of the law, "after due process" was disregarded. That Sta. Maria's
right alone was impaired is not justification for the action taken against him.
Unless, of course, justice be-replaced by collective action as the test for
 137

validity. And, unless we admit that arbitrariness is permissible if it comes

from an impersonal multitude.

Nor may it be assumed that emergency could justify disregard of

constitutional rights. It would seem pertinent to observe that a fundamental
charter is for all times and for all conditions. Eloquent are these passages
from the declaration of concern from the College of Law faculty:

We, the faculty of the College of Law, University of the

Philippines, view with the utmost concern the removal of
Felixberto Sta. Maria from his position as Dean of the College of
Education by the President of the University of the Philippines.

As members of the academic community that is the University, as

members of the Philippine Bar, and as citizens of our Republic,
we speak out in protest against this violation of the Rule of Law in
our midst and the clear disregard of the fundamental rights of one
of our colleagues.

A member of the faculty of the University of the Philippines,

pleading for his day in court, asking to be heard in his defense,
desirous to confront his accusers, and appealing for a hearing by
a disinterested body, has been summarily condemned without
trial. He has been punished without evidence formally presented.
He has been stripped of his powers and prerogatives as Dean, in
violation of that most basic and fundamental right — that no
person shall be deprived of his life, liberty or property without due
process of law and in accordance with the regularly established
procedures.

Our concern has nothing to do with the merits of the case against
Felixberto Sta. Maria. We protest the procedure that was followed
in disregard of due process. Under a legal system like ours, there
are established procedures to settle disputes. The arbitrary rule of
one or the mob rule of the many are alien to our free institutions.
Under existing university rules and practice, charges against
students, no matter how minor, are formally investigated. Why
should a dean be entitled to less?

We are aware that the action against Dean Sta. Maria was
denominated a transfer to other duties in the University without
reduction in rank or salary. This thin veneer of legalism, this
transparent attempt to follow the letter but not the spirit of the
Constitution, the University Charter, the U.P. Revised Code, the
Civil Service Law, and the Civil Service Rules and Regulations
deceives no one. Who can, in good conscience, honestly say that
 138

Dean Sta. Maria has not been reduced in rank, privileges and
prerogatives? Who can discount his moral anguish and suffering?

The vote of confidence given by the faculty of the College of

Education notwithstanding, the President of the University
remains bound by and can act only in consonance with, the Rule
of Law.

We agree with the President that there should be no disruption of

the academic life of the community. Like him, we want peace, but
not at any price. Peace secured at the expense of Constitutional
principles is no peace at all; and the peace just now obtained is
no more than a transitory lull, a precarious interlude that could
lead to even more serious disorders and disregard of fundamental
rights.

We also regard with alarm this action against Dean Sta. Maria
because of its consequences on the morale of the faculty. The
exercise of independent judgment in the performance of
academic responsibilities is imperilled where the force of numbers
can replace the rational solution to a controversy.

Believing that the action taken against Dean Sta. Maria is not
irreversible, we submit to the President of the University this
declaration of concern, urging him to reconsider his action. 52

8. The argument that the transfer of Sta. Maria was made in the interest of
public service has dwindled in strength on the face of the circumstances. Of
course, the university is under compulsion to bring normalcy to the campus,
to end the boycott of classes. The decision to transfer could really refract
the temper of the times. We do say, however, that emotion or muscle need
not displace reason.

Nor do we believe it too difficult for the authorities to hew to the line drawn
by the due process clause, to cause charges to be formalized, Sta. Maria
suspended, and given a fair chance to defend himself. This procedure does
not necessarily bring about humiliation. On the contrary, it exudes the spirit
of fairness.

The baneful effects of Sta. Maria's transfer were easily and promptly felt.
The professors in different faculties were alarmed. Obviously they felt that to
compel a professor to give up his constitutional right is beyond tolerance. A
declaration of concern was expressed not only by the faculty of the College
of Law as aforesaid but also the Colleges of Education, Arts and Sciences,
Medicine and PGH School of Nursing, all of the UP.
 139

More than these, such transfer undermined the integrity of UP. The
university buckled under strain, yielded where it should have upheld its
commitment to the rule of law. Peace may not be secured at the expense of
consecrate constitutional principles. A contrary rule could lead to more
serious disorders.

9. Respondents urge that "the traditional concepts and requirements of due

press could not be made to apply to every kind of administrative action,
without the consequent inefficiency and frustration of legislative purpose."
They argue that certain types of administrative action may be taken without
prior hearing and still satisfy the requirements of due process. The
existence of a public emergency, they insist, would suffice to justify
summary action. To prop up their stand, respondents cite such summary
administrative actions as distraint of a delinquent taxpayer's
property; 53 abatement of a nuisance per sep; 54 cancellation of a passport of
one who absconds to another country to evade criminal prosecution. 55

No question that a summary administrative action is appropriate in the

cases cited. Examples can be multiplied. Thus, without providing for a prior
hearing, a bank conservator may seize a distressed bank; 56 the Food and
Drug Administrator may confiscate harmful drugs whose labels are allegedly
misleading; 57 the Civil Aeronautics Board may suspend a letter of
registration; 58 and the Securities and Exchange Commission may suspend
the license of a securities dealer to deal in small offerings. 59 In all these
cases, the courts have uniformly ruled that due process does not require
judicial inquiry as a condition to the exercise of administrative discretion. "It
is sufficient, where only property rights are concerned, that there is at some
stage an opportunity for a hearing and a judicial determination." 60

We can go on citing cases where regulatory agencies, in a manner of

speaking, shoot first before asking questions without offending against due
process. But it is pointless to cite them here, much less rely upon them to
support Sta. Maria's unconsented transfer. For central to those cases is that
they involve the exercise of regulatory authority pursuant to a delegated
police power. The reason these agencies are given such summary powers
is that they come to grip with issues that are mostly scientific and technical,
issues that are "perhaps not readily reducible to the simple question-and-
answer method so dearly beloved by lawyers." 61 Hence, in place of formal
hearing they resort to inspection, examination and testing — techniques
regarded as sufficient substitutes upon which to base an administrative
action. 62 Whether poultry is putrid, or drug is harmful, or a ship is
unseaworthy, are matters better left to scientific analysis or technical
inspection without the need of a formal hearing. Based on such examination
and inspection, summary orders for condemnation or confiscation may
follow.
 140

But the UP President's decision to summarily take the deanship away from
Sta. Maria cannot, by any stretch of imagination, be cast in the same type of
administrative actions that regulatory agencies exercise under a delegated
police power. The UP President's action here is unlike that, for instance, of
the Central Bank in removing the officers of a floundering bank in order to
take over its management. 63 Not even the so-called emergency situation in
the campus could be invoked to firm up his summary action. Seemingly, the
decision to transfer Sta. Maria was dictated by the howling protest of
demonstrating students who wanted to muscle in their demands for
curriculum changes. But precisely, it is in situations such as this that one
should be on guard lest reason and justice be overwhelmed by excitement
and passion.

10. Again, respondents cite the so called "crisis of confidence" and "failure
of leadership" in the College of Education. Allegedly, these factors caused
the student boycott which UP tried to avert by the expedient of banishing
Sta. Maria from, and effectively depriving him of his deanship, of the College
of Education.

The boycott, we are made to understand, was called because Sta. Maria
resisted the pressures exerted by the graduate students. He refused to give
in to their demands demands that sought to eliminate or influence the
direction of curricular requirements, specifically those which pertain to
foreign languages and comprehensive examinations. The graduate
students, it is alleged, considered these requirements as "obsolete vestiges
of colonial education, ... activities which do not in any way add to the
learning activity of the student." 64

Of course, students are entitled to petition school administrators for change

in curriculum, faculty, and school regulations. 65 Elders should listen to what
they say, and respond to their plea for university instructions that have
relevance in their education. 66

This is a fast changing age of ferment and activism. Every day new
discoveries change man's life, morals, and attitude. The university therefore
cannot remain aloof to the contemporary scene. 67 Perhaps the Wilsonian
description of the ideal University as a place where "calm science" sits "not
knowing that the world passes", a place where past and present are
discussed "with knowledge and without passion", a place "slow to take
excitement" and unlike the world outside "in its self-possession ..." 68 would
now appear to be anachronistic.

The students are "probably right in much of what they say, however wrong
their prescriptions for righting matters." 69 When they protest whether
against the college administration or against the Establishment, they should
be accorded the full scope of the constitutional protection to free speech
 141

and assembly. 70 On the other hand, any decision or action to give in to their
demands must not be dictated solely by their "readiness ... to shout down
and in other ways to stifle the free expression of opinion of those with whom
they disagree." 71 Otherwise, the probability exists that a minority group of
students may succeed in their attempt to impose, by disruptive action, their
views or their will on the majority. What indeed is deplorable is "when we
are confronted only with violence for violences sake, and with attempts to
frighten or intimidate an administration into doing things for which it can
itself see neither the rationale nor the electoral mandate; when we are
offered, as the only argument for change, the fact that a number of people
are themselves very angry and excited; and when we are presented with a
violent objection to what exists, unaccompanied by any constructive concept
of what, ideally, ought to exist in its place." 72

Compelling is the need to adhere to the traditional democratic processes

and procedures to secure action and redress. Decisions that are prodded by
ultimatums and tantrums are generally regarded with apprehension.

It was in the face of student revolt that the university officials buckled under
and gave in to the students' protest against the continued presence of Dean
Sta. Maria in the College of Education.

11. And yet, a close look into the so-called unfulfilled demands — abolition
of foreign language and comprehensive examination — would reveal that.
Dean Sta. Maria could not have unilaterally granted them.

On the foreign language requirement, the students manifested that it is —

... absurd and obsolete. Foreign students fulfill this requirement by

an examination in their language. Many of us take Spanish for the
sake of completing the requirements. We understand that these
requirements in other universities equip the students for his
research. So if a student is doing research on Spanish laws
governing the educational system and would need to use
Spanish, therefore he has to have a reading knowledge of
Spanish. Such is not the case with us. We demand that this
requirement be abolished in the graduate's level. 73

On the comprehensive examination requirements, the students say:

... The present practice is by subject, excluding the cognates.

Graduate students believe that they are taking another final
examination in a subject they have already passed. We question
the absence of policy as to who should give comprehensive
examination. We demand that the College consider the use of
qualifying examination aside from the Dean's proposed
admissions test. 74
 142

These requirements, we believe, are aimed at the development of the

student's depth of insight and breadth of view. This, after all, is an end that a
university education strives to attain. Foreign languages, should be
conceded, widen a man's world. Spanish, in particular, is one of the links to
our past. We can but surmise that Dean Sta. Maria had cogent reasons to
sidetrack the demands. It is within the realm of probabilities that the dean
wanted to preserve the high standards of professional scholarship in the
college. Perhaps he was loathe to turn his college into a factory for half-
baked graduates. The University of the Philippines, we must remember, has
set a standard and established a tradition for learning and leadership.

Consider, too, the fact that the education students are the future mentors of
the youth. Necessarily, they are expected to come through college with as
thorough and extensive preparation as possible if they are to serve as
educational leaders and models for scholarship.

On top of all, Dean Sta. Maria cannot single-handy do away with these
requirements. The responsibility for fixing the academic requisites for
graduation and the receiving of a degree is lodged not in the dean but in the
university council, composed of the President of the university and all faculty
members from assistant professor to full professor. 75 The Dean may only
recommend proposals affecting courses of study." 76

But Dean Sta. Maria had not been remiss in his duties. Truth to tell, the
students admit that Dean Sta. Maria was not after all unreasonably
inflexible, intransigent He sympathetically listened to them, and broadly
satisfied those demands that were within his power as Dean to give, short of
compromising the academic standards of the university. indeed, the
President of the Education Graduate Student Organization appreciated the
Dean's efforts to meet some of our demands". But Dean Sta. Maria could go
no further. He went along with the students as far as the limits of his power
and discretion would allow him to go. Only the University Council and the
Board of Regents could recast the academic requirements in the way the
students wanted them to be. If so, why did they not act on the issue to avert
the crisis? But perhaps the university administration would not want to risk
the downgrading of the university's academic standards.

The editor of the Philippine Collegian, writing the valedictory editorial, said:

We criticized an administration which seemed to sway to the tune

of student power as a sheer force. The administration cannot act
only because of a show of might; it must have reasons for any
act. And it must make these reasons known, acting because of
them without waiting for the prodding of power.
 143

No decision of the President should be forced by emergency, or

consideration of expediency. If emergency, or expediency, or the
fear of student power muscle are the only reasons for a decision,
then the decision should not be taken at all.

On the other hand, if a decision is impending, and is going to be

taken anyway, then the decision-makers should not wait to be
forced into the decision by an emergency situation. They should
decide, and avert that situation which is so costly in terms of class
hours and the integrity of the decision. And then, in terms of the
reaction of the people involved by that dubiously-taken decision.

Because we cannot allow it to appear that the University is being

ruled by the considerations of expediency, or by the dictates of
emergency. The University must be guided by things less base
and more basic. It must be ruled by reason, by justice, by the
search for truth. This should always be made clear, and always
be respected. The University can be neither a self-designed social
instrument nor an institution ruled by force. It is there, if anywhere,
that we must be true to reason. 77

It is because of all the foregoing that we are left under no doubt that
petitioner Felixberto Sta. Maria is entitled to be restored to his position as
Dean of the College of Education.

12. Just as we are about to draw this opinion to a close, our attention is
drawn to the alleged non exhaustion of administrative remedies. A sufficient
answer would be that Dean Sta. Maria asked that he be restored to his
position pending investigation of any charge against him. But the board
refused. Instead, it confirmed the ad interim appointment of respondent
Prof. Nemesio Ceralde as "acting Dean" in place of Sta. Maria. Virtually the
door was closed. Nothing was left for Sta. Maria to do but go to Court. 78

Of course, Sta. Maria stood pat on his right to keep his position as Dean.
This is perfectly understandable. Hindsight now reveals that further pursuit
of administrative remedy before the Board of Regents would be but an act
of supererogation At any rate, there is no compelling reason to resort to this
remedy.79 Here, the claimed right is the constitutionally protected due
process. Mandamus will lie. 80

FOR THE REASONS GIVEN, the writ of certiorari and prohibition prayed for
is hereby granted; the transfer of petitioner Felixberto C. Sta. Maria from his
position as Dean of the College of Education, University of the Philippines,
to the position of Special Assistant to the President, University of the
Philippines, as well as the ad interim appointment of Prof. Nemesio Ceralde
"as acting Dean" of the College of Education, University of the Philippines,
 144

are hereby set aside and declared null and void; the writ
of mandamus prayed for is hereby granted, and the President and the
Board of Regents of the University of the Philippines are hereby ordered to
restore said petitioner Felixberto C. Sta. Maria to his position of Dean,
College of Education, University of the Philippines.

No costs. So ordered.

G.R. No. L-65439 November 13, 1985

PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner

vs.
HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N
FERNANDEZ, JR., HON. ALBINA MANALODANS as Commissioners of
Civil Service Commission and HERNANI P. ESTEBAN, respondents.

Office of the Legal Officer for petitioner.

GUTIERREZ, JR., J.:

The sole issue raised in this petition is the status of respondent Hernani
Esteban's appointment as Vice-President for Administration of the
Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the
position in a permanent capacity as to guarantee as security of tenure.

Respondent Esteban asserts that his appointment is permanent whereas

the petitioner maintains its temporary and contractual nature such that the
respondent may be dismissed at any time even without cause.

Prior to his joining the Pamantasan, Dr. Esteban had been a permanent
employee in the government service for twenty five (25) years. Until May 20,
1973, he was officially connected with the Philippine College of Commerce,
a state-owned educational institution as its Vice-President for Academic
Affairs. Shortly before that date, the Board of Trustees of the College in a
bold move to streamline the college organization resolve to abolish the
position of Vice-President for Academic Affairs. Private respondent was
given the option to continue teaching at the Philippine College of Commerce
which he accepted until his transfer to the Pamantasan ng Lungsod ng
Maynila, upon the invitation of its president, Dr. Consuelo Blanco.

At the Pamantasan, Dr. Esteban was initially extended an ad

interim temporary appointment as Vice-President for Administration by Dr.
Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan
a 'Notification of Confirmation of Temporary Appointment' dated June 28,
1973. His appointment was 'effective May 21, 1973 until June 30, 1974,
 145

unless sooner terminated.' On July 5, 1974, the Secretary of Pamantasan

sent him a 'Notification of Renewal of Temporary Appointment' indicating
that his appointment was renewed 'effective July 1, 1974 until August 31,
1974.'

A month later, on August 30, 1974, he received from the University

Secretary another 'notification of renewal of temporary appointment'
informing him that the Board of Regents, on recommendation of the
President of the University approved the renewal of his appointment
'effective September 1, 1974 until June 30, 1975' with an increased salary of
P17,160 per annum.

On October 15, 1974, incident to a further increase of his salary, Dr.

Esteban was notified that his appointment as vice-president for
administration at a salary of P17,600 per annum had been renewed
effective September 1, 1974 until June 30, 1975.

On June 26, 1975, he received another 'Notification of Renewal of

Temporary Appointment' as Vice-President for Administration with at salary
of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.'

On July 26, 1975, Dr. E qqqsteban discovered that he was not included in
the list of employees recommended for permanent appointments. He wrote
Dr. Consuelo Blanco requesting the conversion of his temporary
appointment to a permanent one, considering his two and half (2½) years
service.

On July 26, 1975, Dr. Esteban received an answer to his request from
President Blanco who indicated various reasons for her not acting favorably
on his request.

On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim

Appointment notifying him that the president of the university had approved
his appointment as Professor III with a salary of P15,600 per
annum 'effective August 1, 1975'. He was further designated as Director of
the Institute of Continuing Education and Community Service with an
honorarium of P5,676 per annum, likewise effective August 1, 1975.

On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular

terminating Dr. Esteban's appointment as Vice-President for Administration
effective July 31, 1975. His appointment dated June 26, 1975 and effective
until June 30, 1976 had been withdrawn before it could be confirmed by the
Pamantasan Board of Regents.

On the same date, August 7, 1975, Dr. Esteban appealed to the Civil
Service Commission for the protection of his tenure in the Pamantasan .
 146

On October 9,1975, the Civil Service Commission ruled that:

The temporary nature of the appointment issued to Dr. Esteban

as Vice President for Administration is conceded. Such being the
Case, his services may be terminated at any time with or without
request that he be extended permanent appointment ,or that his
temporary appointment be converted into permanent one, it may
be stated that the issuance of such appointment is addressed to
the sound discretion of the appointing official.

Dr. Esteban flied a motion for the reconsideration of that ruling. On January
14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban's
motion. It stated that he was fully qualified for the position of Vice-President
for Administration and certified him "for appointment therein under
permanent status." The Commission stated:

In view thereof, and in the absence of any apparent justifiable

reason why Dr. Esteban should remian under temporary status for
the length of time prior to the withdrawal of his appointment as
Vice President for Administration in that University, and as it
further appears that he is fully qualified for the position in question
in view of his extensive experience in the fields of public
administration and management, this Commission hereby
certifies him for appointment therein under permanent status.

The Pamantasan, in turn, asked for the reconsideration of that ruling.

The Commission, in an undated Resolution No. 75, Series of 1976, came

out with a statement which confused more than it clarified. It stated that its
certification should not be interpreted as directing the reinstatement of Dr.
Esteban because 'it was never intended to be so

On May 28, 1976 Esteban asked the commission to reconsider Resolution

No. 75, Series of 1976. He also asked for the payment of the salaries and
allowances due him as of September 1975, which the Pamantasan had
withheld. His request was denied by the commission in its undated
resolution No. 158, Series of 1976.

On September 15, 1976 Esteban reiterated his request for payment of his
salaries.

On September 20, 1976, he asked for a review of the Pamantasan's

decision to terminate his appointment as Vice-President for Administration.

On December 1, 1976, his request for payment of his salaries was referred
by the Commission to the treasurer of the Pamantasan.
 147

On July 6, 1977, the Commission again modified its earlier resolution in as

case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr.
Esteban an ad interim appointment as Vice President for Administration as
only the Board of Regents was empowered to do that under Article 55 of the
University Charter (Rep. Act 4196). However, it ruled that, as a de
facto officer, he was entitled to be paid the salary of that position.

Dr. Esteban and the Pamantasan filed motions for reconsideration of that
ruling prompting the Commission to order them to submit "all papers and
documents pertinent to that case."

On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits

System Board in the Civil Service Commission to hear and decide cases
brought before it on appeal by officers and employees who feel aggrieved
by the determination of officials on personnel matters.

The Board required the Pamantasan to submit its complete records on the
appointment and termination of Dr. Esteban as vice-president for
administration.

While the records officer of the Pamantasan submitted copies of the notices
sent to Esteban regarding his appointment as vice-president for
administration, he did not submit a copy of the Board's Resolution No. 485
passed June 20, 1973 confirming the ad interim appointments of several
academic and non-academic personnel of said university among which was
that of Dr. Hernani Esteban "effective May 21, 1973." He produced a copy
of the memorandum circular dated August 7, 1915 of the President of the
Pamantasan terminating Dr. Esteban's service as of July 31, 1975.

In Resolution No. 597 dated November 11, 1980, the Commissioner

directed the Pamantasan to submit any document or documents directly or
actually showing that Dr. Hernani Esteban was appointed vice-president for
administration of the Pamantasan in a permanent capacity.

On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the

existence of Board Resolution No. 485, replied that "we cannot find any
document showing that Dr. Esteban was appointed ... in a permanent
capacity.

In view of the Pamantasan's failure to produce the minutes of the regular

Board of Regents meeting on June 20, 1973 when Esteban's appointment
was approved the Commission in its Resolution No. 81-279 dated March 5,
1981, concluded that there is truth to the claim of Dr. Esteban that his
appointment as Vice-President for Administration of the Pamantasan was
approved as permanent. It cited Government of the Philippine Islands vs.
Martinez, (44 Phil. 817) that when a party has it in his possession or power
to produce the best evidence of which the case in its nature is susceptible
 148

and withholds it, the fair presumption is that the evidence is withheld for
some sinister motive and that its production would thwart his evil or
fraudulent purpose.

The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-
President for Administration of Pamantasan with permanent status and that
the temporary appointment issued to him did not alter his permanent status
as he had 'already acquired a vested right as well as the right to security of
tenure', that he cannot unceremoniously removed therefrom, nor can the
status of his appointment be changed without cause, as provided by law
and after due process." The Commission held that the termination of his
services was obviously illegal. It directed his immediate reinstatement to the
position of Vice-President for Administration of Pamantasan and the
payment of his back salaries, allowances and other benefits which he failed
to receive from the time he was separated therefrom.

The Pamantasan filed a motion for reconsideration of that resolution. It also

submitted for the first time a copy of Resolution No. 485.

The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the
Pamantasan for having suppressed said piece of evidence from which "the
intention of, or the accurate action taken by PLM Board of Regents on Dr.
Esteban's appointment in question, may be determined." Following the
decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil.
760), the Commission denied the Pamantasan's motion for reconsideration
and ruled that "Upon confirmation of the Board of Regents of the ad
interim appointment of Dr. Esteban the same became permanent."

Upon getting this ruling, the Pamantasan filed a petition for certiorari against

Dr. Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr.
and Albina Manalo Dans. The petition was docketed as Civil Case No.
139840 of the Court of First Instance of Manila, Branch XIII.

On January 8, 1982, the trial court rendered a decision reversing the

Commission's Resolution No. 81-279 and adopted the earlier Commission
Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban's
appointment was invalid, though he may be considered as a de facto vice-
president of the University up to October 9, 1975, the date when the
Commission ruled that his appointment was temporary and could be
terminated at any time.

The private respondent appealed to the Intermediate Appellate Court.

On September 26, 1983. the respondent Intermediate Appellate Court

rendered a decision reversing the trial court's decision. The dispositive
portion of the appellate decision reads:
 149

Wherefore, the appealed decision is hereby revised and set

aside. The Pamantasan's petition for certiorari is denied.
Resolution No 81-279 dated March 5, 1981, as well as Resolution
No. 81-510 dated April 23, 1981, of the respondent Civil Service
Commission, declaring as permanent the appointment of the
appellant Dr. Hernani Esteban as vice- president for
administration of the university under the Board of Regents'
Resolution No. 485 dated June 20, 1973, and ordering his
immediate reinstatement to that position with back salaries,
allowances and other benefits, is affirmed, provided he has not
yet reached the age of compulsory retirement from the
government service; otherwise, he shall be entitled to back
salaries, allowances and other benefits only up to the time he
should handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion
for reconsideration had been denied petitioner Pamantasan ng Lungsod ng
Maynila filed the present petition, now the subject of this review.

We find no error in the pronouncements of the Intermediate Appellate Court.

We rule in favor of the respondents.

From the arguments, it is easy to see why the petitioner should experience
difficulty in understanding the situation. Private respondent had been
extended several "ad-interim" appointments which petitioner mistakenly
understands as appointments temporary in nature. Perhaps, it is the literal
translation of the word "ad interim" which creates such belief. The term is
defined by Black to mean "in the meantime" or for the time being, Thus, an
officer ad interim is one appointed to fill a vacancy, or to discharge the
duties of the office during the absence or temporary incapacity of its regular
incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such
is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban's appointments, the term is not descriptive of the
nature of the appointments given to him. Rather, it is used to denote the
manner in which said appointments were made, that is, done by the
President of the Pamantasan in the meantime, while the Board of Regents,
which is originally vested by the University Charter with the power of
appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil.
760):

... an ad interim appointment is one made in pursuance of

paragraph (4), section 10, Article VII of the Constitution, which
provides that the President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
 150

Congress.' lt is an appointment permanent in nature, and the

circumstance that it is subject to confirmation by the Commission
on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other
than that its provisional period has expired. Said appointment is of
course distinguishable from an 'acting' appointment which is
merely temporary, good until another permanent appointment is
issued.

Not only is the appointment in question an ad interim appointment, but the

same is also a confirmed ad interim appointment. In its Resolution No. 485,
dated June 20, 1973, the Pamantasan Board of Regents verified
respondent Esteban's appointment without condition nor limitation as to
tenure. As of that moment, it became a regular and permanent appointment.

In other words, if the Board of Regents is in session, the Pamantasan

President merely nominates while the Board issues the appointment. But
when the Board is not in session, the President is authorized to issue ad
interim appointments. Such appointments are permanent but their terms are
only until the Board disapproves them. If confirmed, the appointee's term is
converted into the regular term inherent in the position.

Petitioner centers its arguments and tries to fix the attention of the court to
the fact that all notices of appointments, renewals, and confirmation thereof
all declare the same to be temporary, carrying fixed commencement and
termination dates, "unless sooner terminated." As expressed by public
respondent, "... This stubborn insistence is anchored on the notifications of
temporary appointment sent to private respondent Esteban by the Secretary
of Pamantasan. However, this insistence deliberately ignores ... Resolution
No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so
argued. "In case of conflict between a notification issued by the Secretary of
the University which is supposed to reflect the true content of a Board
Resolution and the Resolution itself of said Board of Regents of said
University, the latter is controlling for obvious reasons. The Secretary of the
University has no authority to alter or add something which is not provided
for in the Resolution of the Board of Regents ...". Thus, respondent
Intermediate Appellate Court held:

The permanent nature of appellant's appointment was not altered

or diminished by the misleading 'notifications' which were sent to
him by the secretary of the university president, referring to his
appointment as 'temporary', nor by his uninformed acceptance
thereof without knowledge of the true contents of Resolution No.
485 which the university president appears to have studiously
suppressed.
 151

There is nothing in the Pamantasan Board of Regents' Resolution No. 485

which suggests that respondent Esteban's appointment was temporary. The
Board's action was to confirm or reject an existing ad interim appointment. If
respondent's appointment was intended to be temporary, it should have
been expressly stated. It cannot be made to rest on inconclusive evidence,
specially because a temporary appointment divests the temporary
appointee of the constitutional security of tenure against removal without
cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA
167, cited in Cortez v. Bartolome, 100 SCRA 1).

Further supporting private respondent's stand is the list of permanent

personnel which was submitted to the Commission by the university
president herself on March 3, 1975 for recognition of their permanent status
by the Commission. The appellant's name was the first in that list (Exhibit 8-
B). The permanent status of private respondent's appointment as Vice-
President for Administration at Pamantasan was recognized by the Civil
Service Commission in its lst Indorsement dated April 18, 1975 upon the
request of petitioner. This fact is borne out by the records and the evidence
and found as such by the Intermediate Appellate Court, the Civil Service
Commission as well as the Court of First Instance.

From the foregoing, there appears an intention to deprive private

respondent of his rights as a permanent appointee. With strained relations
and differences in professional opinion between the private respondent and
the Pamantasan President, Dr. Esteban was led to believe that his services
were terminable at pleasure.

The power to appoint is, in essence, discretionary. The appointing power

has the right of choice which he may exercise freely according to his
judgment, deciding for himself who is best qualified among those who have
the necessary qualifications and eligibilities. lt is a prerogative of the
appointing power that may be availed of without liability, provided however,
that it is exercised in good faith for the advancement of the employer's
interest and not for the purpose of defeating or circumventing the rights of
the employees under special laws or under valid agreements, and provided
further, that such prerogatives are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner, or out of malice or spite
(Government Service and Insurance System v. Ayroso 96 SCRA 213). The
general rule is that the power of appointment must remain unhampered by
judicial intervention. However, when the law is violated or when there is
grave abuse of discretion, we have to step in. Otherwise the situation aptly
described by newspaperman Jesus Bigornia would exist as he had written:

... With the sword of Damocles hanging over the heads of faculty
members, the university has spawned a meek, spineless, even
 152

subservient corps of professors and instructors. (Newsman's

Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private respondent's services by

petitioner. With his appointment now settled as permanent., the Civil Service
law and the Constitution guarantee private respondent's security of tenure
as 'No officer or employe in the Civil Service shall be suspended or
dismissed except for cause as provided by law" (Section 3, Article XII, the
1973 Philippine Constitution). Petitioner has failed to substantiate its
allegations of incompetence against respondent Esteban whose record of
government service appears quite impressive. Esteban was not dimissed for
cause after proper proceedings. His appointment was terminated on the
ground that it was temporary.

The intermediate Appellate Court ordered the payment of full back salaries
to Dr. Esteban provided he has not reached the age of compulsory
retirement from the government service.

It is not clear from the records as to when Dr. Esteban actually ceased
working for Pamantasan. Under the law, he is entitled to full pay,
allowances, and other benefits during the period that he was actually
reporting for work and rendering services in whatever capacity, whether
teaching, research or administration. As of backwages, the amount is
generally based on the equivalent of three years' earnings (Philippine
Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223;
Insular Life Assurance Co., Ltd. v. National Labor Relations Commission,
135 SCRA 697). In line with the policy adopted by this Court to do away with
the attendant delay in awarding backwages because of the extended
hearings necessary to prove the earnings, elsewhere of each and every
employee (Philippine Airlines, Inc. v. National Labor Relations
Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial
Relations, 56 SCRA 694), the formula for computing the same calls for
fixing the award of backwages to three years. However, in Dy Keh Beng v.
International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug
Co., et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the
amount of backwages to be "subject to deduction whre there are mitigating
circumstances in favor of the employer, but subject to increase whree there
are aggravating circumstances. (Tupas Local Chapter No. 979, et al. v.
National Labor Relations Commission, et al., G. R. No. 60532-33,
November 5,\1985; Progressive Development Corporation v. Progressive
Employees' Union, 80 SCRA 434.) Considering that in the case at bar, more
than ten (10) years have elpased from the date respondent Esteban as to
the true nature of his appointment and "studiously suppressing" material
data to effectively deprive the latter of his rights as a permanent employee,
we find an award of five (5) years backpay to respondent Dr. Esteban just
 153

and equitable under the circumstances, assuming he has not reached

retirement age in the meantime.

WHEREFORE, the petition for review on certiorari is hereby DISMISSED for

lack of merit. The decision appealed from is affirmed subject to the
modification in the payment of back salaries as stated above.

SO ORDERED.

G.R. No. 158737             August 31, 2004

CIVIL SERVICE COMMISSION, petitioner,

vs.
SATURNINO DE LA CRUZ, respondent.

DECISION

CORONA, J.:

Before us is a petition for certiorari under Rule 45 of the Revised Rules of

Court, seeking to review and set aside the May 14, 2003 decision1 and June
17, 2003 resolution2 of the Court of Appeals in CA-G.R. SP No. 54088,
entitled Saturnino de la Cruz vs. Civil Service Commission. In that decision,
the appellate court set aside CSC Resolution Nos. 98-2970 and 99-1451,
consequently approving Saturnino de la Cruz’ appointment as Chief of the
Aviation Safety Regulation Office.

The pertinent facts,3 as narrated by the Office of the Solicitor General,

follow.

Respondent Saturnino de la Cruz is an employee of the Air

Transportation Office, DOTC, presently holding the position of Chief
Aviation Safety Regulation Officer of the Aviation Safety Division.

Respondent was promotionally appointed to the said position on

November 28, 1994, duly attested by the Civil Service Commission
(CSC). But prior thereto, he was a Check Pilot II in the Air
Transportation Office (ATO).

In a letter dated February 9, 1995, Annabella A. Calamba of the

Aviation Security Division of the ATO formally filed with the Department
of Transportation and Communication (DOTC) her protest against the
 154

promotional appointment of respondent as Chief Aviation Safety

Regulation Officer, claiming among others that respondent did not
meet the four-year supervisory requirement for said position.

On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a

decision finding the protest without merit.

Apparently dissatisfied, Calamba appealed the decision of the DOTC

Secretary to the CSC-NCR.

Under date of October 17, 1995, Director Nelson Acebedo of CSC-

NCR requested ATO Executive Director Manuel Gilo to comment on
the appeal and to submit to the CSC-NCR the documents pertinent
thereto.

Since the CSC-NCR received no action on said request for comment,

the CSC-NCR again wrote Director Gilo regarding the matter on May
5, 1997. But to no avail.

On October 14, 1997, for the last time, the CSC-NCR reiterated to
Director Gilo its request for comment.

On November 18, 1997, the CSC-NCR rendered its decision upholding

the protest of Calamba and recalling the approval of respondent’s
appointment as Chief Aviation Safety Regulation Officer. Said the
CSC-NCR:

"After an initial evaluation of the protest, we find that the only

issue to be resolved is whether or not the protestee meets the
minimum experience requirements as of the date of the
protestee’s appointment to the contested position. The contested
position requires four years of work experience in position/s
involving management per Qualification Standards Manual
prescribed by MC No. 46, s. 1993 and/or four years of experience
in planning, organizing, directing, coordinating and supervising
the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and
mechanics and regulation of the activities of flying schools per
ATO Qualification Standards xxx.

xxx       xxx       xxx

Taking into account his previous positions, Mr. dela Cruz could
not have exercised managerial or supervisory functions for the
required number of years. x x x. Moreover, vis-à-vis the
experience requirements of the approved ATO Qualification
 155

Standards, Mr. dela Cruz’ work experience prior to his

appointment to the contested position did not concur therewith.

We are of the view therefore, that experience-wise, Mr. dela Cruz

did not meet the requirements of the contested position as of the
date of his appointment thereto.

xxx       xxx       xxx."

Under date of December 11, 1997, ATO Director Gilo wrote the CSC-
NCR asking for the suspension of the order recalling respondent’s
appointment, citing several reasons in support thereof.

Subsequently, a Manifestation with Motion to Admit Addendum dated

December 22, 1997 was filed by Director Gilo with the CSC-NCR.
Director Gilo argued that Calamba had no legal personality to file a
protest because she is not a qualified next-in-rank and that the protest
was filed out of time. He likewise asserted that respondent had fully
met the qualifications required of the position.

On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no

cogent reason to disturb earlier rulings on the matter. He also denied
ATO Director Gilo’s request, for lack of merit.

Strangely, in a letter dated January 13, 1998, CSC-NCR Director

Acebedo granted Director Gilo’s request and affirmed the approval of
respondent’s appointment as Chief Aviation Safety Regulation Officer.
He said:

"xxx       xxx       xxx.

We reviewed again the documents including the Office Orders

designating protestant dela Cruz to supervisory position which
were obviously issued during the latter part of 1993. A liberal
consideration thereof would come up with a little over one year of
supervisory and managerial experience. Certainly, he was short
of the required number of years of work experience for the
contested position as of the date of the issue of his appointment.
Nevertheless, considering that Mr. dela Cruz has already in his
favor at least four years of continuous supervisory/managerial
experience from his designation as Acting Chief of the Aviation
Safety Regulation Division, supervened by his permanent
appointment thereto as Chief thereof in November 28, 1994, up to
present, he has substantially satisfied the four years experience
required for appointment to the contested position.

xxx       xxx       xxx."

 156

In a letter dated January 26, 1998, Calamba requested the CSC to

implement the January 5, 1998 ruling of the CSC-NCR.

When asked by the CSC to clarify the conflicting rulings, CSC-NCR

Director Acebedo explained that the January 5, 1998 ruling is unofficial
and inexistent.

The CSC treated Calamba’s request as an appeal. On November 13,

1998, the CSC rendered its Resolution No. 98-2970, the decretal
portion of which reads:

"WHEREFORE, the appeal of Annabella A. Calamba is hereby

granted. The appointment of Saturnino De la Cruz as Chief
Aviation Regulation Officer is disapproved. De la Cruz is hereby
reverted to his former position.

xxx       xxx       xxx."

Acting on the request for reconsideration filed by respondent, the CSC

rendered its Resolution No. 99-1451 on July 6, 1999, the dispositive
portion of which reads:

"WHEREFORE, the instant motion for reconsideration of

Saturnino dela Cruz is hereby denied. Accordingly, CSC
Resolution No. 98-2970 dated November 13, 1998 stands."

On August 11, 1999, respondent filed a petition for review with the Court of
Appeals, docketed as CA-G.R. SP No. 54088, seeking to nullify CSC
Resolution Nos. 98-2970 and 99-1451.

In a decision4 dated March 14, 2003, the Court of Appeals granted the

petition by setting aside CSC Resolution Nos. 98-2970 and 99-1451 and
approving respondent’s appointment as Chief of the Aviation Safety
Regulation Office.

Petitioner’s motion for reconsideration was subsequently denied in a

resolution issued on June 17, 2003.

Hence, the instant petition for review.

Petitioner contends that the appellate court erred in approving respondent’s

appointment as Chief Aviation Safety Regulation Officer despite his failure
to meet the minimum four-year managerial and supervisory qualification for
the position. It further contends that respondent’s completion of the required
experience during the pendency of the present case cannot be counted in
his favor because compliance with the prescribed mandatory requirements
should be as of the date of issuance of the appointment and not the date of
 157

approval by the CSC or the resolution of the protest against the

appointment.

The petition lacks merit.

Contrary to petitioner’s contention, respondent has sufficiently complied with

the required experience standards.

First, upon the issuance of respondent’s appointment on November 28,

1994, the qualification standards of the DOTC for the position of Chief
Aviation Safety Regulation Officer were as follows:

EDUCATION: Bachelor’s Degree related to Aviation

EXPERIENCE 4 years of experience in planning, organizing,
: directing, coordinating, and supervising the
enforcement of air safety laws, rules, and
regulations pertaining to licensing, rating and
checking of all airmen and mechanics and the
regulation of the activities of flying schools.

License required: Airline Transport Rating /

Flight Operations Officer / Aircraft Maintenance
Engineer (A&P) License / Flight Engineer
License
TRAINING: In-service training in management; specialized
course in aircraft maintenance / air carrier
operations/ flight dispatching/ aircraft accident
investigation/ equipment qualification course /
flight training (local & abroad)
ELIGIBILITY: Relevant RA 1080 Career Service Prof.
1st Grade

Relevant Eligibility for Second Level Position5

As noted by the CSC-NCR,6 the contested position required four years of

work experience in managerial position(s) per the Qualification Standards
Manual prescribed by MC No. 46, s. 1993 and/or four years of experience
in planning, organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations pertaining to licensing,
rating and checking of all airmen and mechanics and regulation of the
activities of flying schools per the above-stated ATO-DOTC Qualification
Standards.

Petitioner’s insistence that respondent failed to meet the four-year

managerial and supervisory experience requirement is misplaced. It is a
well-settled rule in statutory construction that the use of the term "and/or"
 158

means that the word "and" and the word "or" are to be used
interchangeably.7 The word "or" is a disjunctive term signifying dissociation
and independence of one thing from another.8 Thus, the use of the
disjunctive term "or" in this controversy connotes that either the standard in
the first clause or that in the second clause may be applied in determining
whether a prospective applicant for the position under question may qualify.

Respondent would indeed lack the required years of work experience to

qualify for the contested position if the managerial standards in the first
clause above were to be strictly followed. At the time of his permanent
appointment on November 28, 1994 as Chief Aviation Safety Regulation
Officer, respondent had a little over one year of managerial experience from
his designation as Acting Chief of the Aviation Safety Division during the
latter part of 1993. However, the work already rendered by respondent in
the ATO at the time of his appointment was well within the supervisory
standard in the second clause. Planning, organizing, directing, coordinating
and supervising the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and mechanics and
regulation of the activities of flying schools were part of the work performed
by respondent for more than 13 years prior to his appointment.

Before respondent was appointed to the contested position, he had held

several other positions in the ATO, namely:

March 6, 1981 to July 15, Supply Checker

1981
July 16, 1981 to February Junior Aeronautical Engineer
5, 1983
February 6, 1983 to Air Carrier Safety Inspector
February 29, 1984
March 1, 1984 to Check Pilot I
February 28, 1987
March 1, 1987 to Check Pilot II
November 27, 1994
November 28, 1994 to Chief Aviation Safety
date Regulation Officer9

These positions, spanning more than 13 years, in four of the five sections of
the Aviation Safety Division of the ATO definitely met the minimum
supervisory experience required of respondent for the position.

In Rapisora vs. Civil Service Commission,10 this Court held that the rule that
appointees must possess the prescribed mandatory requirements cannot be
so strictly interpreted as to curtail an agency’s discretionary power to
appoint, as long as the appointee possesses other qualifications required by
law. The appellate court was therefore correct in setting aside the assailed
 159

CSC resolutions and considering the respondent’s total work experience as

sufficient to meet the supervisory standards under the second clause,
thereby finding respondent qualified for appointment to the contested
position.

Second, respondent’s promotional appointment was issued in accordance

with petitioner’s selection process. Respondent passed the rigid screening
of the ATO Personnel Selection/Promotion Board as well as the oral and
written examinations of the DOTC Selection Board.

DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:

1. Capt. dela Cruz has been with the Air Transportation Office for more
than 13 years already and during such period, he faithfully and
efficiently (served in) four of the five sections of the Aviation Safety
Division of which the position under consideration is the head, thereby
gaining more varied experience and working knowledge of the most
important and sensitive functions of the Division over other applicants;

2. The recommendee always performs his assigned tasks promptly

with dedication, integrity, high sense of responsibility and
professionalism which he had demonstrated when he established and
developed the Airport Crash Rescue Organization (ACRO) procedure
to various national airports of the country, and when he organized the
Air Transportation Office (ATO) Operations Center which is now on a
24-hour operation and serving as the nerve center of this Office;

3. He is a dedicated public servant and is always willing to respond to

call of duty even beyond office hours like when he is flying the ATO’s
aircraft for navigation aide check during holidays and weekends, aside
from conducting checkride to airmen prior to issuance of the pilot
license;

4. Capt. dela Cruz is an outstanding team worker as well as a leader

and promotes enthusiasm among co-workers. He handles all areas of
job with minimal supervision and accomplishes objectives efficiently.
He accepts stress situations and performs extremely well.11

Because of respondent’s excellent credentials, DOTC Assistant Secretary

for Administrative and Legal Affairs Wilfredo M. Trinidad, chair of the
Personnel Selection Board, strongly recommended his promotional
appointment to the contested position.

Third, respondent’s multifarious experiences and trainings12 in air

transportation were taken into account when he was chosen for the subject
position. Respondent not only showed a continuing interest to improve his
expertise in the field of air transportation, he also acquired an Airline
 160

Transport Pilot’s License in 1998.13 As a privileged holder of such license,

respondent exercised administrative supervision and control over pilots,
cabin and crew members to ensure compliance with air safety laws, rules
and regulations.

In addition, respondent’s dedication to the service was demonstrated by his

conceptualization and establishment of the Airport Crash Rescue
Organization (ACRO) procedure in various national airports in the country to
ensure the security of both airport personnel and passengers. Respondent
also organized the Air Transportation Office Operations Center which now
provides air service assistance on a 24-hour basis.

Because of respondent’s commendable performance, he was designated

Chief of the Air Transportation Office Operations Center in 1993 per Office
Order No. 178-93,14 in addition to his duties as Check Pilot II. He was also
designated Acting Chief, Aviation Safety Division, of the ATO per Office
Order No. 211-93.15

In Teologo vs. Civil Service Commission,16 the Supreme Court ruled:

"Promotions in the Civil Service should always be made on the basis of

qualifications, including occupational competence, moral character,
devotion to duty, and, not least important, loyalty to the service. The
last trait should always be given appropriate weight, to reward the civil
servant who has chosen to make his employment in the Government a
lifetime career in which he can expect advancement through the years
for work well done. Political patronage should not be necessary. His
record alone should be sufficient assurance that when a higher
position becomes vacant, he shall be seriously considered for the
promotion and, if warranted, preferred to less devoted aspirants."

As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR

Director Nelson Acebedo, "a proven excellent performance of a person is
better than just experience by occupying a position but lacks dedication to
duty, strong leadership and technical know-how."17

It is elementary in the law of public officers that the power to appoint is in

essence discretionary on the part of the proper authority. In Salles vs.
Francisco, et al.,18 we had occasion to rule that, in the appointment or
promotion of employees, the appointing authority considers not only their
civil service eligibilities but also their performance, education, work
experience, trainings and seminars attended, agency examinations and
seniority. Consequently, the appointing authority has the right of choice
which he may exercise freely according to his best judgment, deciding for
himself who is best qualified among those who have the necessary
qualifications and eligibilities. The final choice of the appointing authority
 161

should be respected and left undisturbed. Judges should not substitute their
judgment for that of the appointing authority.

In the appointment of division chiefs, as in this case, the power to appoint

rests on the head of the department. Sufficient if not plenary discretion
should be granted to those entrusted with the responsibility of administering
the offices concerned. They are in a position to determine who can best
fulfill the functions of the office vacated.19 Not only is the appointing authority
the officer primarily responsible for the administration of the office, he is also
in the best position to determine who among the prospective appointees can
efficiently discharge the functions of the position.20

Respondent was the uncontested choice of the appointing authority. Then

DOTC Secretary Jesus B. Garcia dismissed the protest against
respondent’s appointment. ATO Executive Director Gilo also noted
respondent’s full compliance with the qualifications for the position. CSC-
NCR Director Acebedo, who previously recalled respondent’s appointment,
later affirmed it after a re-evaluation of the case and declared his previous
ruling unofficial and inexistent.

Clearly then, there is no reason to disapprove the appointment of

respondent as Chief of the Aviation Safety Regulation Office considering
that he is fully qualified and evidently the choice of the appointing authority.
Between the Commission and the appointing authority, we sustain the
latter.21 "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 interest 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."22

We, however, agree with petitioner that the reckoning point in determining
the qualifications of an appointee is the date of issuance of the appointment
and not the date of its approval by the CSC or the date of resolution of the
protest against it. We need not rule on petitioner’s assertion that
respondent’s subsequent compliance with the experience standards during
the pendency of the case should not be counted in his favor since
respondent was anyway qualified for the position at the time of his
appointment.

But even assuming for the sake of argument that respondent failed to meet
the experience requirement to qualify for the contested position, we are still
inclined to uphold the appellate court’s approval of respondent’s
appointment. Petitioner itself has, on several occasions, allowed the
 162

appointment of personnel who were initially lacking in experience but

subsequently obtained the same.

In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997,

it ruled thus:

"A careful evaluation of the qualifications of Josue reveals that he

meets the education, training and eligibility requirements of the
position. Considering that Josue has already in his favor three (3)
years and eight (8) months experience as Senior Inspector up to the
present, he has substantially satisfied the four (4) years experience
required for the appointment as Chief Inspector."

Following petitioner’s line of reasoning, respondent is deemed to have

satisfactorily complied with the experience requirement for the contested
position when he was designated Chief of the ATO Operations Center and
Acting Chief of the ATO Aviation Safety Division. Having held said positions
from 1993 to the present, respondent may be considered to have acquired
the necessary experience for the position.

WHEREFORE, the instant petition is hereby DENIED. The decision of the

Court of Appeals setting aside CSC Resolution No. 98-2970 and CSC
Resolution No. 99-1451 is AFFIRMED. The appointment of Saturnino de la
Cruz as Chief Aviation Safety Regulation Officer is APPROVED.

SO ORDERED.

G.R. No. 126252           August 30, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS GARCIA y MANABAT, accused-appellant.

PUNO, J.:

For review is the conviction of accused-appellant JESUS GARCIA y

MANABAT for illegal possession of five (5) kilos of marijuana for which he
was initially sentenced to death. The Information1 against him reads:

That on or about the 28th day of November, 1994, in the City of

Baguio, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, custody and control five (5) kilos of
compressed marijuana dried leaves, without the authority of law to do
so, in violation of the abovecited provision of the law.

CONTRARY TO LAW.
 163

Upon arraignment, accused-appellant pled not guilty.

The prosecutions case hinges on the testimony of Senior Inspector OLIVER

ENMODIAS. He recounted that on November 28, 1994, he and SPO3 JOSE
PANGANIBAN boarded a passenger jeepney from their office in Camp
Dangwa, La Trinidad, Benguet, en route to Baguio City. He took the seat
behind the jeepney driver while SPO3 Panganiban sat opposite him. They
were in civilian attire. When the jeepney reached Km. 4 or 5, accused
JESUS GARCIA boarded the jeepney carrying a plastic bag. He occupied
the front seat, beside the driver and placed the plastic bag on his lap. After a
couple of minutes, the policemen smelled marijuana which seemed to
emanate from accused's bag. To confirm their suspicion, they decided to
follow accused when he gets off the jeepney.2

The accused alighted at the Baguio city hall and the police officers trailed
him. The accused proceeded to Rizal Park and sat by the monument. Half a
meter away, the police officers saw the accused retrieve a green travelling
bag from the back pocket of his pants. He then transferred five (5) packages
wrapped in newspaper from the plastic bag to the green bag. As the
newspaper wrapper of one of the packages was partially torn, the police
officers saw the content of the package. It appeared to be
marijuana.3 Forthwith, the policemen approached the accused and identified
themselves. The accused appeared to be nervous and did not immediately
respond. The policemen then asked the accused if they could inspect his
travelling bag. The accused surrendered his bag and the inspection
revealed that it contained five (5) bricks of what appeared to be dried
marijuana leaves. The police officers then arrested the accused and seized
his bag. The accused was turned over to the CIS office at the Baguio Water
District Compound for further investigation. He was appraised of his
custodial rights. At about 5 p.m., the arresting officers left for the crime
laboratory at Camp Dangwa, Benguet, for chemical analysis of the items
seized from the accused. The next day, the policemen executed their joint
affidavit of arrest and transferred the accused to the Baguio city jail.
Verification by the arresting officers of the records at the Narcotics
Command revealed that the accused's name was in the list of drug
dealers.4 The result of the chemical analysis of the five (5) items seized from
the accused confirmed that they were dried marijuana fruiting tops, weighing
a total of five (5) kilos.5

For his part, the accused admitted being at the locus criminis but denied
possessing marijuana or carrying any bag on November 28, 1994. He
alleged that on said day, at about 8:00 a.m., he left his residence in Angeles
City to visit his brother, NICK GARCIA, whom he had not seen for ten (10)
years. He arrived in Baguio City at 12:30 p.m. Before proceeding to his
brother's house, he took a stroll at the Rizal Park. At about 2:00 p.m., two
(2) men accosted him at the park. They did not identify themselves as police
 164

officers. They held his hands and ordered him to go with them. Despite his
protestations, he was forcibly taken to a waiting car6 and brought to a
safehouse. There, he was asked about the source of his supply of illicit
drugs. When he denied knowledge of the crime imputed to him, he was
brought to a dark room where his hands were tied, his feet bound to a chair,
his mouth covered by tape and his eyes blindfolded. They started mauling
him. Initially, he claimed he was kicked and punched on the chest and
thighs. When asked further whether he suffered bruises and broken ribs, he
answered in the negative. Thereafter, he explained that there were no
visible signs of physical abuse on his body as he was only punched, not
kicked. Notwithstanding the maltreatment he suffered, the accused claimed
he stood firm on his denial that he was dealing with illicit drugs.7

To corroborate accused's testimony, the defense presented MANUEL DE

GUZMAN, a resident of Baguio City and a neighbor of accused's brother
Nick Garcia. He came to know the accused in 1994 when accused visited
his brother Nick, a few months before accused was arrested in November
that same year. He recounted that in the afternoon of November 28, 1994,
while he was walking along Rizal Park, he noticed two (2) men holding the
accused's hands and forcing him to a car. He was then about 8-10 meters
away. He did not see the accused or any of the two men carrying a bag.8

In a Decision, dated January 29, 1996, RTC Judge Pastor de Guzman,

Jr.9 found the accused guilty of illegal possession of prohibited drugs and
sentenced him to suffer the maximum penalty of death. The dispositive
portion reads:

WHEREFORE, premises considered, the Court finds the accused

Jesus Garcia y Manabat guilty of the violation of Section 8, Art. II of
R.A. 6425 as amended by R.A. 7659, involving possession of
marijuana weighing 5 kilograms, beyond reasonable doubt.

The penalty for the possession of marijuana weighing 5 kilograms as

provided under R.A. 6425 as amended by R.A. 7659 is Death. The
Court has no recourse but to sentence the accused Jesus Garcia y
Manabat to suffer the death penalty. The law is harsh but it must be
followed and obeyed, "dura lex sed lex."

SO ORDERED.

The decision was promulgated on February 20, 1996.

On February 26, 1996, the accused moved for reconsideration.10 He

reiterated his position that the uncorroborated testimony of prosecution
witness Inspector Enmodias was insufficient to establish his guilt. He further
contended that he should only be punished with reclusion perpetua.
 165

On April 12, 1996, Judge de Guzman, Jr. filed an application for disability
retirement. This Court, in its en banc Resolution,11 dated June 18, 1996,
approved his application. The effectivity of his retirement was made
retroactive to February 16, 1996.

On August 6, 1996, Acting Presiding Judge Eulogio Juan R. Bautista issued

an Order12 granting in part accused's Motion for Reconsideration. For lack of
aggravating circumstance, the accused's penalty for illegal possession of
marijuana was reduced from death to reclusion perpetua.

In the case at bar, appellant impugns his conviction on the following

grounds: (a) the decision convicting him of the crime charged was not
validly promulgated as the promulgation was made four (4) days after the
retirement of the judge who penned the decision; (b) the uncorroborated
testimony of prosecution witness Senior Inspector Enmodias is insufficient
to establish his guilt beyond reasonable doubt.

First, we shall thresh out the procedural matter raised by appellant.

In his Motion for Clarification,13 appellant contends that since the decision

under review was promulgated on February 20, 1996, four (4) days after the
approved retirement of Judge de Guzman, Jr., his decision is void and has
no binding effect.14

We reject this contention. Undisputably, a decision promulgated after the

retirement of the judge who signed it is null and void. Under the Rules on
Criminal Procedure,15 a decision is valid and binding only if penned and
promulgated by the judge during his incumbency. To be precise, a judgment
has legal effect only when it is rendered: (a) by a court legally constituted
and in the actual exercise of judicial powers, and (b) by a judge legally
appointed, duly qualified and actually acting either de jure or de facto.16 A
judge de jure is one who exercises the office of a judge as a matter of right,
fully invested with all the powers and functions conceded to him under the
law. A judge de facto is one who exercises the office of judge under some
color of right. He has the reputation of the officer he assumes to be, yet he
has some defect in his right to exercise judicial functions at the particular
time.17

In the case at bar, the decision under review was validly promulgated.
Although the effectivity of Judge de Guzman, Jr.'s disability retirement was
made retroactive to February 16, 1996, it cannot be denied that at the time
his subject decision was promulgated on February 20, 1996, he was still the
incumbent judge of the RTC, Branch LX of Baguio City, and has in fact
continued to hold said office and act as judge thereof until his application for
retirement was approved in June 1996. Thus, as of February 20, 1996 when
the decision convicting appellant was promulgated, Judge de Guzman, Jr.
 166

was actually discharging his duties as a de facto judge. In fact, as of that

time, he has yet to file his application for disability retirement. To be sure, as
early as 1918, we laid down the principle that where the term of the judge
has terminated and he has ceased to act as judge, his subsequent acts in
attempting to dispose of business he left unfinished before the expiration of
his term are void.18 However, in the present case, as Judge de Guzman, Jr.
was a de facto judge in the actual exercise of his office at the time the
decision under review was promulgated on February 20, 1996, said decision
is legal and has a valid and binding effect on appellant.19

On the merits, we likewise affirm appellant's conviction.

In his Memorandum20 before the trial court, appellant insisted that the

prosecution was unable to discharge its onus of establishing his guilt
beyond reasonable doubt. He maintained that the uncorroborated testimony
of the prosecution's main witness, Senior Inspector Enmodias, is incredible
and unreliable. Firstly, appellant pointed out that if the police officers indeed
smell and the marijuana he was allegedly carrying while they were all on
board the jeepney, they should have immediately arrested him instead of
waiting for him to alight and stroll at the Rizal Park. Secondly, appellant
faulted the procedure adopted by the arresting officers who, after the arrest,
took him to the CIS office at the Baguio Water District Compound for
investigation instead of bringing him to the nearest police station, as
mandated under Section 5, Rule 113 of the Rules on Criminal
Procedure. Finally, appellant theorized that the prosecution's omission or
failure to present the other arresting officer, SPO3 Panganiban, to
corroborate the testimony of its witness Senior Inspector Enmodias was
fatal to the prosecution's case as the lone testimony of Enmodias failed to
prove his guilt beyond reasonable doubt

These contentions of appellant fail to persuade. The prosecution was able

to prove appellant's guilt beyond reasonable doubt. There is nothing
irregular in the manner appellant was apprehended by the police authorities.
On the contrary, we find that, without compromising their sworn duty to
enforce the law, the police officers exercised reasonable prudence and
caution in desisting to apprehend appellant inside the jeepney when they
initially suspected he was in possession of marijuana. They sought to verify
further their suspicion and decided to trail appellant when the latter alighted
from the jeepney. It was only after they saw that one of the packages with
the torn wrapper contained what looked like marijuana fruiting tops did they
accost appellant and make the arrest. At that precise time, they had
obtained personal knowledge of circumstances indicating that appellant had
illicit drugs in his possession. They had reasonable ground upon which to
base a lawful arrest without a warrant.1âwphi1.nêt
 167

Neither do we find anything irregular with the turn over of appellant to the
CIS Office. At the trial, it was sufficiently clarified that this has been the
practice of the arresting officers as their office had previously arranged with
the CIS for assistance with respect to investigations of suspected criminals,
the CIS office being more specialized in the area of investigation.21 Neither
can the police officers be held liable for arbitrarily detaining appellant at the
CIS office. Article 125 of the Revised Penal Code, as amended, penalizes a
public officer who shall detain another for some legal ground and fail to
deliver him to the proper authorities for 36 hours for crimes punishable by
afflictive or capital penalties. In the present case, the record bears that
appellant was arrested for possession of five (5) kilos of marijuana on
November 28, 1994 at 2 p.m., a crime punishable with reclusion perpetua to
death. He was detained for further investigation and delivered by the
arresting officers to the court in the afternoon of the next day. Clearly, the
detention of appellant for purposes of investigation did not exceed the
duration allowed by law, i.e., 36 hours from the time of his arrest.

Coming now to appellant's defense, we find that his simplistic version of

what transpired that fateful day utterly failed to rebut the overwhelming
evidence presented by the prosecution. His testimony is not worthy of
credence. Firstly, appellant insists he did not bring any travelling bag or
personal items with him.22 However, we find it baffling that one would visit a
relative in a distant province and fail to bring clothes and other personal
belongings for the duration of his stay. Secondly, while appellant repeatedly
emphasized that he went to Baguio City to visit his brother whom he had not
seen for ten years,23 his corroborating witness, de Guzman, adamantly
insisted that the first time he met appellant was only months before the
arrest.24 Thirdly, we find it altogether disturbing that appellant, without
compunction, acknowledged in open court that he lied when he initially
claimed he was kicked by the police officers while under their custody. After
testifying that he was kicked and punched on the chest and thighs, appellant
unwittingly declared that he suffered no broken ribs or internal injury as a
result of the alleged mauling. Realizing the improbability of his claim of
maltreatment, he promptly altered his previous testimony. He sought to
explain the lack of visible signs of physical abuse on his body by clarifying
that he was only punched, not kicked, by the police authorities.25 Lastly, it
runs counter to common experience that an innocent person, wrongly
accused of a crime and subjected to alleged physical abuse by the
authorities would keep mum about his plight. Yet, appellant, through all the
sufferings he supposedly underwent, would have us believe that he has not
confided to anyone, not even to his brother, his version of the incident, not
to mention the maltreatment he supposedly endured in the hands of the
police authorities.26 In sum, appellant's defense lacks the ring of truth.
 168

Neither did the testimony of appellant's corroborating witness aid the

defense as it is equally flawed. De Guzman testified that he saw appellant
being held by two men and being forced into a car, yet he never revealed
what he saw to appellant's brother Nick. No explanation was offered for this
omission. Although De Guzman thought that the two men harbored ill
intentions in abducting appellant, he never reported the incident to the
police nor told Nick, appellant's brother, about what he witnessed. In fact, it
was when Nick told him that appellant was in jail that de Guzman allegedly
mentioned to Nick what he saw days earlier.27

Treated separately, the incongruent details in the defense theory may

appear innocuous at first blush. However, the inconsistencies eventually
add up, striking at the very core of appellant's defense — the real purpose
of his presence at the crime scene. The contradictions become disturbing as
they remain unsatisfactorily explained by the defense and unrebutted on
record.

In sum, we find the testimony of Senior Inspector Enmodias credible to

sustain a judgment of conviction. We reiterate the familiar rule that the
testimony of a single witness, if positive and credible, is enough to convict
an accused. For indeed, criminals are convicted not on the number of
witnesses presented against them, but on the credibility of the testimony of
even one witness.28 It bears stress that it is the quality, not the quantity, of
testimony that counts.29 To be sure, a corroborative testimony is not
necessary where the details of the crime have been testified to with
sufficient clarity.30 As there was nothing to indicate in this case that police
officer Enmodias was inspired by ill-motive to testify mendaciously against
appellant, the trial court had every reason to accord full faith and credit to
his testimony.31

On a final note: The death sentence originally imposed on appellant was

correctly modified by the trial court and reduced to reclusion perpetua as
there was no aggravating circumstance present in the commission of the
crime. However, both the Decision and Order of the trial court omitted to
impose the penalty of fine.32

IN VIEW WHEREOF, the Order, dated August 6, 1996, affirming the

conviction of appellant JESUS GARCIA y MANABAT for violation of Section
8, Article II of R.A. 6425, as amended by R.A. 7659, but reducing his
penalty to reclusion perpetua is AFFIRMED, subject to the modification that
the additional penalty of fine in the amount of ten million (P10,000,000.00)
pesos is likewise imposed on him. Costs against appellant.

SO ORDERED.

G.R. No. 111471 September 26, 1994

 169

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T.

DEBULGADO, petitioners,
vs.
CIVIL SERVICE COMMISSION, respondent.

Marlon P. Ontal for petitioners.

FELICIANO, J.:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San

Carlos, Negros Occidental. On 1 October 1992, petitioner Mayor appointed
his wife, petitioner Victoria T. Debulgado, as General Services Officer, that
is, as head of the Office of General Services 1 of the City Government of
San Carlos.

Petitioner Victoria was one of three (3) employees of the City Government
who were considered for the position of General Services Officer. Before
her promotion in 1992, she had been in the service of the City Government
for about thirty-two (32) years. She joined the City Government on 3
January 1961 as Assistant License Clerk. Through the years, she rose from
the ranks, successively occupying the following positions:

(a) Assistant Chief of the License & Fees Division, from 1 July
1965 to 30 June 1973;

(b) Chief of the License and Fees Division, from 1 July 1973 to 1
January 1981;

(c) Cashier, from 2 January 1981 to 30 June 1989; and

(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2

On 1 October 1992, petitioner Victoria assumed the new post, and

commenced discharging the functions, of General Services Officer of
San Carlos City and receiving the regular salary attached to that
position.

On 16 December 1992, public respondent Civil Service Commission

("Commission") received a letter 3 from Congressman Tranquilino B.
Carmona of the First District of Negros Occidental, calling attention to the
promotional appointment issued by petitioner Mayor in favor of his wife.

The Commission directed its Regional Office No. 6-Iloilo City to submit a
report on the appointment of petitioner Victoria.
 170

From the report submitted by Director Jesse J. Caberoy of the Iloilo City-
CSRO No. 6, the Commission found that petitioner Mayor was the lawful
husband of the appointee, petitioner Victoria, the two (2) having been
married sometime in 1964. Director Caberoy also reported that the
appointment papers prepared by the Office of the City Mayor of San Carlos
were submitted to the Bacolod City CSC-Field Office on 28 October 1992,
and that the appointment was thereafter approved by Director Purita H.
Escobia of that CSC-Field Office, on 18 November 1992.

Acting on the report of Director Caberoy, the Commission, in its Resolution

No. 93-1427 dated 13 April 1993, recalled the approval issued by Director
Escobia and disapproved the promotion of petitioner Victoria to the position
of General Services Officer of San Carlos City upon the ground that that
promotion violated the statutory prohibition against nepotic appointments.

On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of

Resolution No. 93-1427 of the Commission. 4 Petitioners moved for
reconsideration, contending that the statutory prohibition against nepotism
was not applicable to the appointment of Victoria as General Services
Officer. Petitioners also asserted that the Commission had deprived
petitioner Victoria of her right to due process by unilaterally revoking her
appointment. The motion for reconsideration was denied by the Commission
on 21 July 1993.

In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend

that the Commission had gravely abused its discretion in withdrawing and
disapproving petitioner Victoria's promotional appointment. Petitioners
assert that Victoria can no longer be removed from the position of General
Services Officer without giving her an opportunity to be heard and to answer
the charged of nepotism.

Petitioner Mayor denies that he had been motivated by personal reasons

when he appointed his wife to the new post. He states that his wife was the
most qualified among the candidates for appointment to that position, she
having worked for the City Government for thirty-two (32) years and being
highly recommended by the OIC-Treasurer of San Carlos City. 5 It is also
claimed by petitioner Mayor that his choice of his wife for the position was
concurred in by the Sangguniang Panglungsod. 6 He further avers that he
had consulted the Field and Regional Officers of the Commission in Bacolod
City, and raised the question of applicability of the prohibition against
nepotism to the then proposed promotion of his wife in one of the seminars
conducted by the Commission's Regional Office held in San Carlos City on
21 and 22 September 1992. According to petitioner Mayor, one Gregorio C.
Agdon, a supervising personnel specialist in the Commission's Bacolod
Office, informed him that the promotional appointment was not covered by
the prohibition. 7
 171

The basic contention of petitioners is that the prohibition against nepotic

appointments is applicable only to original appointments and not to
promotional appointments. They believe that because petitioner Victoria
was already in the service of the City Government before she married
petitioner Mayor, the reason behind the prohibition no longer applied to her
promotional appointment. Petitioners also affirm that petitioner Victoria
deserves to be promoted to General Services Officer, considering her long
and faithful service to the City Government. 8

The task before this Court is, accordingly, two-fold:

(1) to determine whether a promotional appointment is covered by

the legal prohibition against nepotism, or whether that prohibition
applies only to original appointments to the Civil Service; and

(2) to determine whether the Commission had gravely abused its

discretion in recalling and disapproving the promotional
appointment given to petitioner Victoria after the Commission,
through Director Escobia, had earlier approved that same
appointment, without giving an opportunity to petitioner Victoria to
explain her side on the matter.

The prohibitory norm against nepotism in the public service is set out in
Section 59, Book V of the Revised Administrative Code of 1987 (also known
as E.O. No. 292). Section 59 reads as follows:

Sec. 59. Nepotism — (1) All appointments in the national,

provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or
of the persons exercising immediate supervision over him, are
hereby prohibited.

As used in this Section the word "relative" and members of the

family referred to are those related within the third degree either
of consanguinity or of affinity.

(2) The following are exempted from the operation of the rules on
nepotism: (a) persons employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the Armed Forces of
the Philippines: Provided, however, That in each particular
instance full report of such appointment shall be made to the
Commission.
 172

The restriction mentioned in subsection (1) shall not be applicable

to the case of a member of any family who, after his or her
appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which
event the employment or retention therein of both husband and
wife may be allowed.

(3) In order to give immediate effect to these provisions, cases of

previous appointment which are in contravention hereof shall be
corrected by transfer and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives
who were appointed in violation of these provisions. (Emphasis
supplied).

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of

Executive Order No. 292 and other Pertinent Civil Service Laws," issued on
27 December 1991, implementing, among other things, the abovequoted
Section 59, provides as follows:

Sec. 6. No appointments in the national, provincial, city and

municipal government or in any branch or instrumentality thereof,
including government-owned or controlled corporations with
original charters shall be made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate
supervision over the appointee.

Unless otherwise specifically provided by law, as used in this

Section, the word "relative" and the members of the family
referred to are those related within the third degree either of
consanguinity or of affinity.

The following are exempted from the operation of the rules on

nepotism: (a) persons employed in a confidential capacity; (b)
teachers; (c) physicians; (d) members of the Armed Forces of the
Philippines. Provided, however, That in each particular instance
full report of such appointment shall be made to the Commission.

The restriction mentioned in the first paragraph of this Section

shall not be applicable to the case of a member of any family who
after his or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or bureau, in
which event the employment or retention therein of both husband
and wife may be allowed.

Cases of previous appointment which are in contravention hereof

shall be corrected by transfer, and pending such transfer no
 173

promotion or salary increase shall be allowed in favor of the

relative or relatives who were appointed in violation of these
provisions. (Emphasis supplied)

It will be noted that the abovequoted Section 6 of Implementing Rule

XVIII essentially tracks the provisions of Section 59, Book V of E.O.
No. 292. 9

We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292,

quoted above. The noteworthy fact may be pointed out, at the outset, that
Section 59 as it exists today has been in our statute books in substantially
identical form and language for at least thirty (30) years. 10

A textual examination of Section 59 at once reveals that the prohibition was

cast in comprehensive and unqualified terms. Firstly, it explicitly covers
"all appointments", without seeking to make any distinction between
differing kinds or types of appointments. Secondly, Section 59 covers all
appointments to the national, provincial, city and municipal government, as
well as any branch or instrumentality thereof and all government owned or
controlled corporations. Thirdly, there is a list of exceptions set out in
Section 59 itself, but it is a short list:

(a) persons employed in a confidential capacity;

(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.

The list has not been added to or subtracted from for the past thirty
(30) years. The list does not contain words like "and other similar
positions." Thus, the list appears to us to be a closed one, at least
closed until lengthened or shortened by Congress.

Section 59 of Book V, E.O. No. 292 should, of course, be read in connection

with the Omnibus Implementing Rules. Additional light is shed on the issue
we here address by some provisions of these Rules. Section 1, Rule V of
the Omnibus Implementing Rules reads as follows:

Sec. 1. All appointments in the career service shall be made only

according to merit and fitness to be determined as far as
practicable by competitive examinations.

As used in these Rules, any action denoting movement or

progress of personnel in the civil service shall be known
as personnel action. Such action shall include promotion,
transfer, reinstatement, reemployment, detail, secondment,
reassignment, demotion and separation. All original appointments
and personnel actions shall be in accordance with these Rules
 174

and with other regulations and standards that may be

promulgated by the Commission. (Emphasis supplied)

Section 1, Rule VII of the same Rules also bears upon our inquiry:

Sec. 1. The following constitute personnel actions: original

appointment, appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, secondment,
demotion and separation. (Emphasis supplied)

Under the abovequoted provisions of the Implementing Rules, both an

original appointment and a promotion are particular species of personnel
action. The original appointment of a civil service employee and all
subsequent personnel actions undertaken by or in respect of that employee
such as promotion, transfer, reinstatement, reemployment, etc., must
comply with the Implementing Rules including, of course, the prohibition
against nepotism in Rule XVIII. To the extent that all personnel actions
occurring after an original appointment, require the issuance of a new
appointment to another position (or to the original position in case of
reinstatement), we believe that such appointment must comply with all
applicable rules and prohibitions, including the statutory and regulatory
prohibition against nepotism. To limit the thrust of the prohibition against
nepotism to the appointment issued at the time of initial entry into the
government service, and to insulate from that prohibition appointments
subsequently issued when personnel actions are thereafter taken in respect
of the same employee, would be basically to render that prohibition, in the
words of Laurel V, etc. v. Civil Service Commission, 11 "meaningless and
toothless."

Inquiry into the basic purpose or objective of the prohibition against

nepotism also strongly indicates that that prohibition was intended to be a
comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic
policy which pervades all the provisions of our Civil Service law, including
Section 59 thereof:

Sec. 1. Declaration of Policy. — The State shall insure and

promote the Constitutional mandate that appointments in the Civil
Service shall be made only according to merit and fitness; . . .
(Emphasis supplied)

Put succinctly, that purpose is to ensure that all appointments and

other personnel actions in the civil service should be based on merit
and fitness and should never depend on how close or intimate an
appointee is to the appointing power. 12

Laurel V, etc. v. Civil Service Commission supra, is instructive in this

connection. In that case, petitioner Governor of Batangas Province
 175

appointed or designated his brother, Benjamin Laurel, who had been

holding a promotional appointment as Civil Security Officer, a position
classified as "primarily confidential" by the Civil Service, to the position of
Provincial Administrator, a position in the Career Civil Service. This Court
held that the appointment or designation as Acting Provincial Administrator
was violative of the prohibition against nepotism, then embodied in Section
49, P.D. No. 807. Moreover, the Court emphatically agreed with the Civil
Service Commission that "although what was extended to Benjamin was
merely a designation and not an appointment, . . . the prohibitive mantle on
nepotism would include designation, because what cannot be done directly,
cannot be done indirectly:"

We cannot accept petitioner's view. His specious and tenuous

distinction between appointment and designation is nothing more
than either a ploy ingeniously conceived to circumvent the rigid
rule on nepotism or a last-ditch maneuver to cushion the impact
of its violation. The rule admits of no distinction between
appointment and designation. Designation is also defined as "an
appointment or assignment to a particular office"; and "to
designate" means "to indicate, select, appoint or set apart for a
purpose of duty." (Black's Law Dictionary, Fifth ed., 402)

xxx xxx xxx

It seems clear to Us that Section 49 of P.D. No. 807 does not

suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree,
career service positions may be filled up only by appointment,
either permanent or temporary; hence a designation of a person
to fill it up because it is vacant, is necessarily included in the term
appointment, for it precisely accomplishes the same purpose.
Moreover, if a designation is not to be deemed included in the
term appointment under Section 49 of P.D. No. 807, then the
prohibition on nepotism would be meaningless and toothless. Any
appointing authority may circumvent it by merely designating, and
not appointing, a relative within the prohibited degree to a vacant
position in the career service. Indeed, as correctly stated by public
respondent, "what cannot be done directly cannot be done
indirectly." 13 (Emphasis partly in the original and partly supplied;
citation omitted)

Thus, the Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive.

One of the contentions of petitioner in the case at bar is that the ratio of the
prohibition against nepotism is not applicable here because petitioner
 176

Victoria was already in the government service at the time petitioners were
married in 1964. It is not disputed that the original 1961 appointment of
petitioner Victoria as an Assistant License Clerk was not a nepotic
appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof,
that the prohibition against nepotism is not

applicable to the case of a member of any family who, after his or

her appointment to any position in any office or bureau, contracts
marriage with someone in the same office or bureau, in which
event the employment or retention therein of both husband and
wife may be allowed. (Emphasis supplied)

The subsequent marriage of one to the other of petitioners did not

retroactively convert the original appointment of petitioner Victoria into
a prohibited nepotic one. It is the promotional appointment issued by
petitioner Mayor to petitioner Victoria in 1 October 1982 that is at
stake.

Here, the basic argument of petitioners is that to read the prohibition in

Section 59, Book V of E.O. No. 292 as applicable both to original and
promotional or subsequent appointments, would be to deprive the
government of the services of loyal and faithful employees who would
thereby be penalized simply because the appointing or recommending
official happens to be related to the employees within the third degree of
consanguinity or affinity.

A major difficulty with the petitioners' argument is that it tends to prove too
much. For the appointee, whether in an original or a promotion appointment,
may in fact be quite loyal and efficient and hard-working; yet that
circumstance will not prevent the application of the prohibition certainly in
respect of the original appointment. The Court is not unaware of the
difficulties that the comprehensive prohibition against nepotism would
impose upon petitioner Victoria and others who maybe in the same position.
It is essential to stress, however, that the prohibition applies quite without
regard to the actual merits of the proposed appointee and to the good
intentions of the appointing or recommending authority, and that the
prohibition against nepotism in appointments whether original or
promotional, is not intended by the legislative authority to penalize faithful
service.

The purpose of Section 59 which shines through the comprehensive and

unqualified language in which it was cast and has remained for decades,
is precisely to take out of the discretion of the appointing and
recommending authority the matter of appointing or recommending for
appointment a relative. In other words, Section 59 insures the objectivity of
the appointing or recommending official by preventing that objectivity from
 177

being in fact tested. The importance of this statutory objective is difficult to

overstress in the culture in which we live and work in the Philippines, where
family bonds remain, in general, compelling and cohesive.

The conclusion we reach is that Section 59, Book V, E.O. No. 292 means
exactly what it says in plain and ordinary language: it refers to "all
appointments" whether original or promotional in nature. The public policy
embodied in Section 59 is clearly fundamental in importance, and the Court
has neither authority nor inclination to dilute that important public policy by
introducing a qualification here or a distinction there.

It follows that the promotional appointment of petitioner Victoria by her

husband, petitioner Mayor, falls within the prohibited class of appointments:
the prohibited relationship between the appointing authority (petitioner
Mayor) and the appointee (wife Victoria) existed at the time the promotional
appointment was issued. It is scarcely necessary to add that the reasons
which may have moved petitioner Mayor to issue the prohibited appointment
are, as a matter of law, not relevant in this connection. 14

II

We turn to the second issue where petitioners contend that when the
promotional appointment of petitioner Victoria was approved by Director
Escobia, CSC Field Office, Bacolod City, that appointment become
complete. When petitioner Victoria took her oath of office and commenced
the discharge of the duties of a General Services Officer, she acquired a
vested right to that position and cannot, according to petitioners, be
removed from that position without due process of law.

This argument misconceives the nature of the action taken by the

respondent Commission. That action was not the imposition of an
administrative disciplinary measure upon petitioner Victoria, nor upon
petitioner Mayor. There were no administrative charges in respect of which
petitioner Victoria would have been entitled to notice and hearing. The
Commission, in approving or disapproving an appointment, only examines
the conformity of the appointment with applicable provisions of law and
whether the appointee possesses all the minimum qualifications and none
of the disqualifications. At all events, as the Solicitor General has noted,
petitioner Victoria was afforded an opportunity to be heard when she filed a
motion for reconsideration with the Commission and there challenged the
disapproval by the Commission.

The action of the Commission was, in other words, taken in implementation

of Section 59, Book V, E.O. No. 292 and the relevant Implementing
Regulations. Because the promotional appointment in favor of petitioner
Victoria was a violation of Section 59, it was null and void as being contra
 178

legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets

out the principal legal consequence of an appointment issued in disregard of
the statutory prohibition:

Sec. 9. An appointment accepted by the appointee cannot be

withdrawn or revoked by the appointing authority and shall remain
in force and effect until disapproved by the Commission.
However, an appointment may be void from the beginning due to
fraud on the part of the appointee or because it was issued in
violation of law. (Emphasis supplied)

A void appointment cannot give rise to security of tenure on the part of

the holder of such appointment.

The Commission is empowered to take appropriate action on all

appointments and other personnel actions, e.g., promotions. 15 Such power
includes the authority to recall an appointment initially approved in disregard
of applicable provisions of Civil Service law and regulations. Section 20 of
Rule VI of the Omnibus Implementing Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment,

the same may be recalled on any of the following grounds:

(a) Non-compliance with the procedures/criteria provided in the

agency's Merit Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion

Board;

(c) Violation of the existing collective agreement between

management and employees relative to promotion; or

(d) Violation of other existing civil service law, rules and

regulations. (Emphasis supplied).

The recall or withdrawal by the Commission of the approval which had been
issued by one of its Field Officers, Director Escobia, was accordingly lawful
and appropriate, the promotional appointment of petitioner Victoria being
void "from the beginning." The approval issued by Director Escobia did not,
as it could not, cure the intrinsic vice of that appointment.

We conclude, in respect of the second issue, that petitioners have not

shown any grave abuse of discretion, amounting to lack of excess of
jurisdiction on the part of respondent Commission.

Petitioners have also complained that the letter of Congressman Carmona

which had precipitated action on the part of respondent Commission, was
 179

not a verified letter. They contend that the Commission could not or should
not have acted upon the charges raised in that letter.

We are not aware of any law or regulation requiring the letter written by the
Congressman to be subscribed under oath before the Commission could act
thereon. Under its own rules and regulations, the Commission may
review motu proprio personnel actions involving the position of a Division
Chief or above, such as the position of General Services Officer. 16 We hold
that the respondent Commission had authority, indeed the duty, to recall on
its own initiative the erroneous initial approval of the promotional
appointment extended to petitioner Victoria, and to review the same de
novo.

WHEREFORE, for all the foregoing, the Petition for Certiorari must be

DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

[ G.R. Nos. 217126-27, November 10, 2015 ]

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE

OMBUDSMAN, PETITIONER, VS. COURT OF APPEALS (SIXTH
DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and
immemorially acknowledged so to be[.]"[1]

The Case

Before the Court is a petition for certiorari and prohibition[2] filed on March

25, 2015 by petitioner Conchita Carpio Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of the Solicitor General
(OSG), assailing: (a) the Resolution[3] dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which
granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer
for the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order[4] dated March 10, 20,15 of the
Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order)
preventively suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months without
 180

pay; and (b) the Resolution[5] dated March 20, 2015 of the CA, ordering the
Ombudsman to comment on Binay, Jr.'s petition for contempt [6] in CA-G.R.
SP No. 139504.

Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of

preliminary injunction[8] (WPI) in CA-G.R. SP No. 139453 which further
enjoined the implementation of the preventive suspension order, prompting
the Ombudsman to file a supplemental petition[9] on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit[10] was filed by Atty. Renato L.

Bondal and Nicolas "Ching" Enciso VI before the Office of the Ombudsman
against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al), accusing them of Plunder[11] and
violation of Republic Act No. (RA) 3019,[12] otherwise known as "The Anti-
Graft and Corrupt Practices Act," in connection with the five (5) phases of
the procurement and construction of the Makati City Hall Parking Building
(Makati Parking Building).[13]

On September 9, 2014, the Ombudsman constituted a Special Panel of

Investigators[14] to conduct a fact-finding investigation, submit an
investigation report, and file the necessary complaint, if warranted (1st
Special Panel).[15] Pursuant to the Ombudsman's directive, on March 5, 2015,
the 1st Special Panel filed a complaint[16] (OMB Complaint) against Binay,
Jr., et al, charging them with six (6) administrative cases[17] for Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best
Interest of the Service, and six (6) criminal cases[18] for violation of Section 3
(e) of RA 3019, Malversation of Public Funds, and Falsification of Public
Documents (OMB Cases).[19]

As to Binay, Jr., the OMB Complaint alleged that he was involved in

anomalous activities attending the following procurement and construction
phases of the Makati Parking Building project, committed during his
previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)[20]

(a) On September 21, 2010, Binay, Jr. issued the Notice of
Award[21] for Phase III of the Makati Parking Building project to Hilmarc's
Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract[22] on September 28, 2010,[23] without the
required publication and the lack of architectural design,[24] and approved
the release of funds therefor in the following amounts as follows: (1)
P130,518,394.80 on December 15, 2010;[25] (2) P134,470,659.64 on
 181

January 19, 2011;[26] (3) P92,775,202.[27] on February 25, 2011;[27] (4)

P57,148,625.51 on March 28, 2011;[28] (5) P40,908,750.61 on May 3,
2011;[29] and (6) P106,672,761.90 on July 7, 2011;[30]

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award[31] for Phase
IV of the Makati Parking Building project to Hilmarc's, and consequently,
executed the corresponding contract[32] on August 18, 2011,[33] without the
required publication and the lack of architectural design,[34] and approved
the release of funds therefor in the following amounts as follows: (1)
P182,325,538.97 on October 4, 2O11;[35] (2) P173,132,606.91 on October
28,2011;[36] (3) P80,408,735.20 on December 12, 2011;[37] (4) P62,878,291.81
on February 10, 2012;[38] and (5) P59,639,167.90 on October 1, 2012;[39]

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award [40] for Phase
V of the Makati Parking Building project to Hilmarc's, and consequently,
executed the corresponding contract[41] on September 13, 2012,[42] without
the required publication and the lack of architectural design, [43] and
approved the release of the funds therefor in the amounts of
P32,398,220.05[44] and P30,582,629.30[45] on December 20, 2012;  and

Binay, Jr.'s Second Term (2013 to 2016)[46]

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of
funds for the remaining balance of the September 13, 2012 contract with
Hilmarc's for Phase V of the Makati Parking Building project in the amount
of P27,443,629.97;[47] and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the
remaining balance of the contract[48] with MANA Architecture & Interior
Design Co. (MANA) for the design and architectural services covering the
Makati Parking Building project in the amount of P429,011.48. [49]

On March 6, 2015, the Ombudsman created another Special Panel of

Investigators to conduct a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special Panel).[50] Thereafter, on March
9, 2015, the 2nd Special Panel issued separate orders[51] for each of the OMB
Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.[52]

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman,

upon the recommendation of the 2nd Special Panel, issued on March 10,
2015, the subject preventive suspension order, placing Binay, Jr., et
al. under preventive suspension for not more than six (6) months without
pay, during the pendency of the OMB Cases.[53] The Ombudsman ruled that
the requisites for the preventive suspension of a public officer are present,
 182

[54]
 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given
that (1) the losing bidders and members of the Bids and Awards Committee
of Makati City had attested to the irregularities attending the Makati
Parking Building project; (2) the documents on record negated the
publication of bids; and (3) the disbursement vouchers, checks, and official
receipts showed the release of funds; and (b) (1) Binay, Jr., et al. were
administratively charged with Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised
Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access to public records and allow
them to influence possible witnesses; hence, their continued stay in office
may prejudice the investigation relative to the OMB Cases filed against
them.[55] Consequently, the Ombudsman directed the Department of Interior
and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension
order against Binay, Jr., et al., upon receipt of the same.[56]

On March 11, 2015, a copy of the preventive suspension order was sent to
the Office of the City Mayor, and received by Maricon Ausan, a member of
Binay, Jr.'s staff.[57]

The Proceedings Before the CA

On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA,

docketed as CA-G.R. SP No. 139453, seeking the nullification of the
preventive suspension order, and praying for the issuance of a TRO and/or
WPI to enjoin its implementation.[60] Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous
activity attending any of the five (5) phases of the Makati Parking Building
project since: (a) Phases I and II were undertaken before he was elected
Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability therefor, if
any, thus rendering the administrative cases against him moot and
academic.[61] In any event, Binay, Jr. claimed that the
Ombudsman's preventive suspension order failed to show that
the evidence of guilt presented against him is strong, maintaining
that he did not participate in any of the purported irregularities. [62] In
support of his prayer for injunctive relief, Binay, Jr. argued that he has a
clear and unmistakable right to hold public office, having won by landslide
vote in the 2010 and 2013 elections, and that, in view of the condonation
doctrine, as well as the lack of evidence to sustain the charges against him,
his suspension from office would undeservedly deprive the electorate of the
services of the person they have conscientiously chosen and voted into
 183

office.[63]

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the
implementation of the preventive suspension order through the DILG
National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City
Hall after failing to personally serve the same on Binay, Jr. as the points of
entry to the Makati City Hall were closed. At around 9:47 a.m., Assistant
City Prosecutor of Makati Billy C. Evangelista administered the oath of office
on Makati City Vice Mayor Romulo V. Peña, Jr. (Peña, Jr.) who thereupon
assumed office as Acting Mayor.[64]

At noon of the same day, the CA issued a Resolution[65] (dated March 16,

2015), granting Binay, Jr.'s prayer for a TRO,[66] notwithstanding Pena, Jr.'s
assumption of duties as Acting Mayor earlier that day. [67] Citing the case
of Governor Garcia, Jr. v. CA,[68] the CA found that it was more prudent on
its part to issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were established that
the acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation doctrine,
Binay, Jr.'s re-election meant that he can no longer be administratively
charged.[69] The CA then directed the Ombudsman to comment on Binay,
Jr.'s petition for certiorari.[70]

On March 17, 2015, the Ombudsman manifested[71] that the TRO did not
state what act was being restrained and that since the preventive suspension
order had already been served and implemented, there was no longer any
act to restrain.[72]

On the same day, Binay, Jr. filed a petition for contempt, [73]  docketed
as CA-G.R. SP No. 139504, accusing Secretary Roxas, Director Brion, the
officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.[74] The Ombudsman and
Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the amended
and supplemental petition for contempt[75] (petition for contempt) on March
19, 2015.[76] Among others, Binay, Jr. accused the Ombudsman and other
respondents therein for willfully and maliciously ignoring the TRO issued by
the CA against the preventive suspension order.[77]

In a Resolution[78] dated March 20, 2015, the CA ordered the

consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to Binay, Jr.'s petition
for contempt, directed the Ombudsman to file her comment thereto.
 184

[79]
 The cases were set for hearing of oral arguments on March 30 and 31,
2015.[80]

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25,
2015, the Ombudsman filed the present petition before this Court, assailing
the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s prayer for
TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution
directing her to file a comment on Binay, Jr.'s petition for contempt in CA-
G.R. SP No. 139504.[81] The Ombudsman claims that: (a) the CA had no
jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA
6770,[82] or "The Ombudsman Act of 1989," which states that no injunctive
writ could be issued to delay the Ombudsman's investigation unless there is
prima facie evidence that the subject matter thereof is outside the latter's
jurisdiction;[83] and (b) the CA's directive for the Ombudsman to comment
on Binay, Jr.'s petition for contempt is illegal and improper, considering
that the Ombudsman is an impeachable officer, and therefore, cannot be
subjected to contempt proceedings.[84]

In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1,

Article VIII of the 1987 Constitution specifically grants the CA judicial power
to review acts of any branch or instrumentality of government, including the
Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case
when said office issued the preventive suspension order against him.
[86]
 Binay, Jr. posits that it was incumbent upon the Ombudsman to1 have
been apprised of the condonation doctrine as this would have weighed
heavily in determining whether there was strong evidence to warrant the
issuance of the preventive suspension order.[87] In this relation, Binay, Jr.
maintains that the CA correctly enjoined the implementation of the
preventive suspension order given his clear and unmistakable right to public
office, and that it is clear that he could not be held administratively liable for
any of the charges against him since his subsequent re-election in 2013
operated as a condonation of any administrative offenses he may have
committed during his previous term.[88] As regards the CA's order for the
Ombudsman to comment on his petition for contempt, Binay, Jr. submits
that while the Ombudsman is indeed an impeachable officer and, hence,
cannot be removed from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment, without
necessarily resulting in removal from office. Thus, the fact that the
Ombudsman is an impeachable officer should not deprive the CA of its
inherent power to punish contempt.[89]

Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the

 185

oral arguments before it were held,[91] granting Binay, Jr.'s prayer for a WPI,
which further enjoined the implementation of the preventive suspension
order. In so ruling, the CA found that Binay, Jr. has an ostensible right to
the final relief prayed for, namely, the nullification of the preventive
suspension order, in view of the condonation doctrine, citing Aguinaldo v.
Santos.[92] Particularly, it found that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from
2007 to 2013.[93] In this regard, the CA added that, although there were acts
which were apparently committed by Binay, Jr. beyond his first term —
namely, the alleged payments on July 3, July 4, and July 24, 2013,
[94]
 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr.
cannot be held administratively liable therefor based on the cases
of Salalima v. Guingona, Jr.,[95] and Mayor Garcia v.
Mojica[96] wherein the condonation doctrine was still applied by the Court
although the payments were made after the official's re-election, reasoning
that the payments were merely effected pursuant to contracts executed
before said re-election.[97] To this, the CA added that there was no concrete
evidence of Binay, Jr.'s participation for the alleged payments made on July
3, 4, and 24, 2013.[98]

In view of the CA's supervening issuance of a WPI pursuant to its April 6,

2015 Resolution, the Ombudsman filed a supplemental petition [99] before
this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of
issuing preventive suspension orders. The Ombudsman also maintained
that a reliance on the condonation doctrine is a matter of defense, which
should have been raised by Binay, Jr. before it during the administrative
proceedings, and that, at any rate, there is no condonation because Binay,
Jr. committed acts subject of the OMB Complaint after his re-election in
2013.[100]

On April 14 and 21, 2015,[101] the Court conducted hearings for the oral
arguments of the parties. Thereafter, they were required to file their
respective memoranda.[102] In compliance thereto, the Ombudsman filed her
Memorandum[103] on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.[104]

Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the

parties to comment on each other's memoranda, and the OSG to comment
on the Ombudsman's Memorandum, all within ten (10) days from receipt of
the notice.

On July 15, 2015, both parties filed their respective comments to each
 186

other's memoranda.[106] Meanwhile, on July 16, 2015, the OSG filed its

Manifestation In Lieu of Comment,[107] simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its Memorandum,
consistent with its desire to state its "institutional position."[108] In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman
pleaded, among others, that this Court abandon the condonation doctrine.
[109]
 In view of the foregoing, the case was deemed submitted for resolution.

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral
arguments conducted before this Court, the main issues to be resolved in
seriatim are as follows:

I. Whether or not the present petition, and not motions for

reconsideration of the assailed CA issuances in CA-G.R. SP No. 139453
and CA-G.R. SP No. 139504, is the Ombudsman's plain, speedy, and
adequate remedy;
II. Whether or not the CA has subject matter jurisdiction over the main
petition for certiorari in CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO
and/or WPI enjoining the implementation of a preventive suspension
order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the TRO
and eventually, the WPI in CA-G.R. SP No. 139453 enjoining the
implementation of the preventive suspension order against Binay, Jr.
based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on
Binay, Jr.'s petition for contempt in CA- G.R. SP No. 139504 is
improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

I.

A common requirement to both a petition for certiorari and a petition for

prohibition taken under Rule 65 of the 1997 Rules of Civil Procedure is that
the petitioner has no other plain, speedy, and adequate remedy in the
 187

ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts r
with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed

with the lower court prior to resorting to the extraordinary remedy
of certiorari or prohibition since a motion for reconsideration may still be
considered as a plain, speedy, and adequate remedy in the ordinary course
of law. The rationale for the pre-requisite is to grant an opportunity for the
lower court or agency to correct any actual or perceived error attributed to it
by the re-examination of the legal and factual circumstances of the case. [110]

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere
absence of all other legal remedies and the danger of failure of justice
without the writ, that must usually determine the propriety of certiorari [or
prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment, order, or
resolution of the lower court or agency, x x x."[111]

In this light, certain exceptions were crafted to the general rule requiring a
prior motion for reconsideration before the filing of a petition
 188

for certiorari, which exceptions also apply to a petition for prohibition.

[112]
 These are: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in
the certiorari proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon in the lower
court; (c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f) where, in a criminal case,
relief from an order of arrest is urgent and the granting of such relief by the
trial court is improbable; (g) where the proceedings in the lower court are a
nullity for lack of due process; (h) where the proceedings were ex parte or in
which the petitioner had no opportunity to object; and (i) where the issue
raised is one purely of law or where public interest is involved.[113]

In this case, it is ineluctably clear that the above-highlighted exceptions

attend since, for the first time, the question on the authority of the CA - and
of this Court, for that matter - to enjoin the implementation of a preventive
suspension order issued by the Office of the Ombudsman is put to the fore.
This case tests the constitutional and statutory limits of the fundamental
powers of key government institutions - namely, the Office of the
Ombudsman, the Legislature, and the Judiciary - and hence, involves an
issue of transcendental public importance that demands no less than a
careful but expeditious resolution. Also raised is the equally important issue
on the propriety of the continuous application of the condonation doctrine
as invoked by a public officer who desires exculpation from administrative
liability. As such, the Ombudsman's direct resort to certiorari and
prohibition before this Court, notwithstanding her failure to move for the
prior reconsideration of the assailed issuances in CA-G.R. SP No. 139453
and CA-G.R. SP No. 139504 before the CA, is justified.

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,
[114]
 it is nonetheless proper to resolve the issue on the CA's lack of subject
matter jurisdiction over the main petition for certiorari in CA-G.R. SP No.
139453, in view of the well-established rule that a court's jurisdiction over
the subject matter may be raised at any stage of the proceedings. The
rationale is that subject matter jurisdiction is conferred by law, and the lack
of it affects the very authority of the court to take cognizance of and to
render judgment on the action.[115] Hence, it should be preliminarily
determined if the CA indeed had subject matter jurisdiction over the main
CA-G.R. SP No. 139453 petition, as the same determines the validity of all
 189

subsequent proceedings relative thereto. It is noteworthy to point out that

Binay, Jr. was given the opportunity by this Court to be heard on this issue,
[116]
 as he, in fact, duly submitted his opposition through his comment to the
Ombudsman's Memorandum.[117] That being said, the Court perceives no
reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter

jurisdiction over the main petition, and her corollary prayer for its
dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,[118] which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court

to delay an investigation being conducted by the Ombudsman under this
Act, unless there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme Court, on pure
question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any

court (except the Supreme Court[119]) from issuing a writ of injunction to
delay an investigation being conducted by the Office of the Ombudsman.
Generally speaking, "[injunction is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a certain act. It may
be the main action or merely a provisional remedy for and as an incident in
the main action."[120] Considering the textual qualifier "to delay," which
connotes a suspension of an action while the main case remains pending,
the "writ of injunction" mentioned in this paragraph could only refer to
injunctions of the provisional kind, consistent with the nature of a
provisional injunctive relief.

The exception to the no injunction policy is when there is prima

facie evidence that the subject matter of the investigation is outside the
office's jurisdiction. The Office of the Ombudsman has disciplinary authority
over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of
impeachable officers, Members of Congress, and the Judiciary.
[121]
 Nonetheless, the Ombudsman retains the power to investigate any
serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted.[122] Note that the Ombudsman has concurrent
jurisdiction over certain administrative cases which are within the
 190

jurisdiction of the regular courts or administrative agencies, but has primary

jurisdiction to investigate any act or omission of a public officer or employee
who is under the jurisdiction of the Sandiganbayan. [123]

On the other hand, the second paragraph of Section 14, RA

6770 provides that no appeal or application for remedy may be heard
against the decision or findings of the Ombudsman, with the exception of
the Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no jurisdiction
over the main CA-G.R. SP No. 139453 petition, as it is supposedly this Court
which has the sole jurisdiction to conduct a judicial review of its decisions or
findings, is vague for two (2) reasons: (1) it is unclear what the phrase
"application for remedy" or the word "findings" refers to; and (2) it does not
specify what procedural remedy is solely allowable to this Court, save that
the same be taken only against a pure question of law. The task then, is to
apply the relevant principles of statutory construction to resolve the
ambiguity.

"The underlying principle of all construction is that the intent of the

legislature should be sought in the words employed to express it, and that
when found[,] it should be made to govern, x x x. If the words of the law
seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at
the time the law was enacted; what the circumstances were, under which the
action was taken; what evil, if any, was meant to be redressed; x x x [a]nd
where the law has contemporaneously been put into operation, and in doing
so a construction has necessarily been put upon it, this construction,
especially if followed for some considerable period, is entitled to great
respect, as being very probably a true expression of the legislative purpose,
and is not lightly to be overruled, although it is not conclusive." [124]

As an aid to construction, courts may avail themselves of the actual

proceedings of the legislative body in interpreting a statute of doubtful
meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be
adopted,[125] albeit not controlling in the interpretation of the law.[126]

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA
6770, particularly on the matter of judicial review of her office's decisions or
findings, is supposedly clear from the following Senate deliberations: [127]
 191

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14,
after the phrase "petition for" delete the word "review" and in lieu thereof,
insert the word CERTIORARI. So that, review or appeal from the decision of
the Ombudsman would only be taken not on a petition for review, but
on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of

that? Will it be more difficult to reverse the decision under
review?

Senator Angara. It has two practical effect ways, Mr. President. First is

that the findings of facts of the Ombudsman would be almost
conclusive if supported by substantial evidence. Second, we
would not unnecessarily clog the docket of the Supreme Court.
So, it in effect will be a very strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for

example, if there are exhaustive remedies available to a respondent, the
respondent himself has the right to exhaust the administrative remedies
available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short

by appealing to the Supreme Court only on certiorari?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example,
if he is a presidential appointee who is the respondent, if there is f
no certiorari available, is the respondent given the right to exhaust his
administrative remedies first before the Ombudsman can take the
appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change

the administrative law principle that before one can go to court, he must
exhaust all administrative remedies xxx available to him before he goes
and seeks judicial review.
 192

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the

Committee in changing the method of appeal from one of a
petition for review to a petition for certiorari?

Senator Angara. To make it consistent, Mr. President, with the

provision here in the bill to the effect that the finding of facts of
the Ombudsman is conclusive if supported by substantial
evidence.

Senator Gonzales. A statement has been made by the Honorable

Presiding Officer to which I concur, that in an appeal by certiorari,
the appeal is more difficult. Because in certiorari it is a matter
of discretion on the part of the court, whether to give due course
to the petition or dismiss it outright. Is that not correct, Mr.
President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari, the issue

is limited to whether or not the Ombudsman here has acted
without jurisdiction and has committed a grave abuse of
discretion amounting to lack of jurisdiction. Is that not the
consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention

of the Committee is to make it harder to have a judicial review,
but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a
distinction between a petition for review and a petition for certiorari;
because before, under the 1935 Constitution appeal from any order, ruling
or decision of the COMELEC shall be by means of review. But under the
Constitution it is now by certiorari and the Supreme Court said that by this
change, the court exercising judicial review will not inquire into the facts,
into the evidence, because we will not go deeply by way of review into the
evidence on record but its authority will be limited to a determination of
whether the administrative agency acted without, or in excess of,
jurisdiction, or committed a grave abuse of discretion. So, I assume that that
is the purpose of this amendment, Mr. President.
 193

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara.
It is very well stated, Mr. President.

xxxx

The President. It is evident that there must be some final

authority to render decisions. Should it be the Ombudsman or
should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government,

Mr. President, it is and has to be the Supreme Court to make the
final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have
made a reservation to introduce an appropriate change during the period of
Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment

inserting the word CERTIORARI instead of "review"? [Silence] Hearing
none, the same is approved.[128]

Upon an assiduous scrutiny of these deliberations, the Court is, however,

unconvinced that the provision debated on was Section 14, RA 6770, as the
Ombudsman invokes. Note that the exchange begins with the suggestion of
Senator Angara to delete the word "review" that comes after the phrase
"petition for review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be
taken on a petition for review, but on certiorari" The ensuing exchange
between Senators Gonzales and Angara then dwells on the purpose of
changing the method of review from one of a petition for review to a petition
for certiorari - that is, to make "the appeal x x x more difficult." Ultimately,
the amendment to the change in wording, from "petition for review" to
"petition for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed

"petition for certiorari" are nowhere to be found in the text of Section 14,
RA 6770. In fact, it was earlier mentioned that this provision, particularly its
second paragraph, does not indicate what specific procedural remedy one
 194

should take in assailing a decision or finding of the Ombudsman; it only

reveals that the remedy be taken to this Court based on pure questions of
law. More so, it was even commented upon during the oral arguments of
this case[129] that there was no debate or clarification made on the current
formulation of the second paragraph of Section 14, RA 6770 per the
available excerpts of the Senate deliberations. In any case, at least for the
above-cited deliberations, the Court finds no adequate support to sustain
the Ombudsman's entreaty that the CA had no subject matter jurisdiction
over the main CA-G.R. SP No. 139453 petition.

On the contrary, it actually makes greater sense to posit that these

deliberations refer to another Ombudsman Act provision, namely Section
27, RA 6770. This is because the latter textually reflects the approval of
Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of
the factual findings of the Ombudsman, if supported by substantial evidence
(third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary

orders of the Office of the Ombudsman are immediately effective and
executory.

A motion for reconsideration of any order, directive or decision of the Office

of the Ombudsman must be filed within five (5) days after receipt of written
notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order,
directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the

interest of the movant. The motion for reconsideration shall be resolved
within three (3) days from filing: Provided, That only one motion for
reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of not
more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or

decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
 195

The above rules may be amended or modified by the Office of the '
Ombudsman as the interest of justice may require. (Emphasis and
underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in

stating that a "petition for certiorari" should be taken in accordance with
Rule 45 of the Rules of Court, as it is well-known that under the present
1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule
65 of the said Rules. However, it should be discerned that the Ombudsman
Act was passed way back in 1989[130] and, hence, before the advent of the
1997 Rules of Civil Procedure.[131] At that time, the governing 1964 Rules of
Court,[132] consistent with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari, thus possibly explaining the remedy's
textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by

certiorari, from a judgment of the Court of Appeals, by filing with the
Supreme Court a petition for certiorari, within fifteen (15) days from
notice of judgment or of the denial of his motion for reconsideration filed in
due time, and paying at the same time, to the clerk of said court the
corresponding docketing fee. The petition shall not be acted upon without
proof of service of a copy thereof to the Court of Appeals. (Emphasis
supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of

Section 14, RA 6770 notwithstanding, the other principles of statutory
construction can apply to ascertain the meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o

court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme
Court, on pure question of law."    ;

As a general rule, the second paragraph of Section 14, RA 6770 bans the

whole range of remedies against issuances of the Ombudsman, by
prohibiting: (a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the exception
below) against the same. To clarify, the phrase "application for remedy,"
 196

being a generally worded provision, and being separated from the term
"appeal" by the disjunctive "or",[133] refers to any remedy (whether taken
mainly or provisionally), except an appeal, following the maxim generalia
verba sunt generaliter intelligenda: general words are to be understood in a
general sense.[134] By the same principle, the word "findings," which is also
separated from the word "decision" by the disjunctive "or", would therefore
refer to any finding made by the Ombudsman (whether final or provisional),
except a decision.

The subject provision, however, crafts an exception to the foregoing

general rule. While the specific procedural vehicle is not explicit from its
text, it is fairly deducible that the second paragraph of Section 14, RA 6770
excepts, as the only allowable remedy against "the decision or findings of the
Ombudsman," a Rule 45 appeal, for the reason that it is the only
remedy taken to the Supreme Court on "pure questions of law,"
whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise

statement of the matters involved, the assignment of errors made in the
court below, and the reasons relied on for the allowance of the petition, and
it should be accompanied with a true copy of the judgment sought to be
reviewed, together with twelve (12) copies of the record on appeal, if any,
and of the petitioner's brief as filed in the Court of Appeals. A verified
statement of the date when notice of judgment and denial of the motion for
reconsideration, if any, were received shall accompany the petition.

Only questions of law may be raised in the petition and must be

distinctly set forth. If no record on appeal has been filed in the Court of
Appeals, the clerk of the Supreme Court, upon admission of the petition,
shall demand from the Court of Appeals the elevation of the whole record of
the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

 197

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal

by certiorari from a judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or
proceeding at any time during its pendency. (Emphasis and underscoring
supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770
could be a petition for certiorari under Rule 65 of the 1964 Rules of Court or
the 1997 Rules of Procedure is a suggestion that defies traditional norms of
procedure. It is basic procedural law that a Rule 65 petition is based on
errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact
and law, relate to. In fact, there is no procedural rule, whether in the old or
new Rules, which grounds a Rule 65 petition on pure questions of law.
Indeed, it is also a statutory construction principle that the lawmaking body
cannot be said to have intended the establishment of conflicting and hostile
systems on the same subject. Such a result would render legislation a useless
and idle ceremony, and subject the laws to uncertainty and unintelligibility.
[135]
 There should then be no confusion that the second paragraph of Section
14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum,
the appropriate construction of this Ombudsman Act provision is that all
remedies against issuances of the Office of the Ombudsman are prohibited,
except the above-stated Rule 45 remedy to the Court on pure questions of
law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited

restriction on remedies is inappropriate since a Rule 45 appeal -which is
within the sphere of the rules of procedure promulgated by this Court - can
only be taken against final decisions or orders of lower courts, [136] and not
against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot
alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings"
issued by the Ombudsman. More significantly, by confining the remedy
 198

to a Rule 45 appeal, the provision takes away the remedy of certiorari,

grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of
Section 14, RA 6770 also increased this Court's appellate jurisdiction,
without a showing, however, that it gave its consent to the same. The
provision is, in fact, very similar to the fourth paragraph of Section 27, RA
6770 (as above-cited), which was invalidated in the case of Fabian v.
Desiertoni[137] (Fabian).[138]

In Fabian, the Court struck down the fourth paragraph of Section 27, RA

6770 as unconstitutional since it had the effect of increasing the appellate
jurisdiction of the Court without its advice and concurrence in violation of
Section 30, Article VI of the 1987 Constitution.[139] Moreover, this provision
was found to be inconsistent with Section 1, Rule 45 of the present 1997
Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized
by law;" and not of quasi-judicial agencies, such as the Office of the
Ombudsman, the remedy now being a Rule 43 appeal to the Court
of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's
ratiocinations and ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the

application of Section 27 of R.A. No. 6770 (The Ombudsman's Act) and
Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to
assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and
Section 7, Rule III of A.O. No. 7 and the other rules implementing
the Act) insofar as it provided for appeal by certiorari under Rule
45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770
had the effect, not only of increasing the appellate jurisdiction of
this Court without its advice and concurrence in violation of
Section 30, Article VI of the Constitution; it was also inconsistent
with Section 1, Rule 45 of the Rules of Court which provides that a
petition for review on certiorari shall apply only to a review of
"judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No.
6770 should be struck down as unconstitutional, and in line with the
regulatory philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from decisions of the Office
 199

of the Ombudsman in administrative disciplinary cases should be taken to

the CA under the provisions of Rule 43.[141] (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against
"decision or findings" of the Ombudsman to a Rule 45 appeal and thus -
similar to the fourth paragraph of Section 27, RA 6770 [142] - attempts to
effectively increase the Supreme Court's appellate jurisdiction without its
advice and concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the
Ombudsman's posturing,[144] Fabian should squarely apply since the above-
stated Ombudsman Act provisions are in part materia in that they "cover
the same specific or particular subject matter,"[145] that is, the manner of
judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly
determinative of the existence of the CA's subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition, including all subsequent
proceedings relative thereto, as the Ombudsman herself has developed, the
Court deems it proper to resolve this issue ex mero motu (on its own
motion[146]). This procedure, as was similarly adopted in Fabian, finds its
bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional

grounds must be raised by a party to the case, neither of whom did so in this
case, but that is not an inflexible rule, as we shall explain.

Since the constitution is intended for the observance of the judiciary and
other departments of the government and the judges are sworn to support
its provisions, the courts are not at liberty to overlook or disregard its
commands or countenance evasions thereof. When it is clear , that a statute
transgresses the authority vested in a legislative body, it is the duty of the
courts to declare that the constitution, and not the statute, governs in a case
before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions
which are not raised in the pleadings, the rule has been recognized to admit
of certain exceptions. It does not preclude a court from inquiring into its
own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to
enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it
may determine whether or not it has jurisdiction, it necessarily follows that
it may inquire into the constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly

procedure in the trial are ordinarily rejected unless the
 200

jurisdiction of the court below or that of the appellate court is

involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take cognizance of
lack of jurisdiction at any point in the case where that fact is developed. The
court has a clearly recognized right to determine its own jurisdiction in any
proceeding.[147] (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453

was filed by Binay, Jr. before the CA in order to nullify the preventive
suspension order issued by the Ombudsman, an interlocutory order,
[148]
 hence, unappealable.[149]

In several cases decided after Fabian, the Court has ruled that Rule 65

petitions for certiorari against unappelable issuances[150] of the Ombudsman
should be filed before the CA, and not directly before this Court:

In Office of the Ombudsman v. Capulong[151] (March 12, 2014), wherein a

preventive suspension order issued by the Office of the Ombudsman was -
similar to this case - assailed through a Rule 65 petition for certiorari filed
by the public officer before the CA, the Court held that "[t]here being a
finding of grave abuse of discretion on the part of the Ombudsman, it was
certainly imperative for the CA to grant incidental reliefs, as sanctioned by
Section 1 of Rule 65."[152]

In Dagan v. Office of the Ombudsman[153] (November 19, 2013), involving a

Rule 65 petition for certiorari assailing a final and unappealable order of the
Office of the Ombudsman in an administrative case, the Court remarked
that "petitioner employed the correct mode of review in this case, i.e., a
special civil action for certiorari before the Court of Appeals."[154] In this
relation, it stated that while "a special civil action for Certiorari is within the
concurrent original jurisdiction of the Supreme Court and the Court of
Appeals, such petition should be initially filed with the Court of Appeals in
observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr.[155] (June 6, 2001), wherein it was ruled that the
remedy against final and unappealable orders of the Office of the
Ombudsman in an administrative case was a Rule 65 petition to the CA. The
same verdict was reached in Ruivivar[156] (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA

6770, the Court, consistent with existing jurisprudence, concludes that the
CA has subject matter jurisdiction over the main CA-G.R. SP No. 139453
petition. That being said, the Court now examines the objections of the
Ombudsman, this time against the CA's authority to issue the assailed TRO
 201

and WPI against the implementation of the preventive suspension order,

incidental to that main case.
III.

From the inception of these proceedings, the Ombudsman has been

adamant that the CA has no jurisdiction to issue any provisional injunctive
writ against her office to enjoin its preventive suspension orders. As basis,
she invokes the first paragraph of Section 14, RA 6770 in conjunction
with her office's independence under the 1987 Constitution. She advances
the idea that "[i]n order to further ensure [her office's] independence, [RA
6770] likewise insulated it from judicial intervention,"[157] particularly, "from
injunctive reliefs traditionally obtainable from the courts,"[158] claiming that
said writs may work "just as effectively as direct harassment or political
pressure would."[159]

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence

of the Office of the Ombudsman:

Section 5. There is hereby created the independent Office of the

Ombudsman, composed of the Ombudsman to be known as Tanodbayan,
one overall Deputy and at least one Deputy each for Luzon, Visayas[,] and
Mindanao. A separate Deputy for the military establishment may likewise be
appointed. (Emphasis supplied)

In Gonzales III v. Office of the President[160] (Gonzales III), the Court traced

the historical underpinnings of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several

Ombudsman-like agencies to serve as the people's medium for airing
grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective
performance of their function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman
became a constitutionally-mandated office to give it political independence
and adequate powers to enforce its mandate. Pursuant to the ( 1973
Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office
of the Ombudsman to be known as Tanodbayan. It was tasked principally to
investigate, on complaint or motu proprio, any administrative act of any
 202

administrative agency, including any government-owned or controlled

corporation. When the Office of the Tanodbayan was reorganized in 1979,
the powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file
the corresponding information, and control the prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman
was created by constitutional fiat. Unlike in the 1973 Constitution, its
independence was expressly and constitutionally guaranteed. Its
objectives are to enforce the state policy in Section 27, Article II and the
standard of accountability in public service under Section 1, Article XI of the
1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.

Section 1. Public office is a public trust. Public officers and employees must,
at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives.[161] (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's

mandate, and in correlation, the impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the
Ombudsman is envisioned to be the "protector of the people" against the
inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau. This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses , of the
bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The
Office of the Ombudsman shall have disciplinary authority over all elective
and appointive officials of the Government and its subdivisions,
instrumentalities, and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court
has upheld its actions, although not squarely falling under the broad powers
 203

granted [to] it by the Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and
the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all

acts of malfeasance, misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics and from fear of
external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is
a very powerful government constitutional agency that is considered "a
notch above other grievance-handling investigative bodies." It has powers,
both constitutional and statutory, that are commensurate , with its daunting
task of enforcing accountability of public officers. [162] (Emphasis and
underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the
Ombudsman's independence vis-a-vis the independence of the other
constitutional bodies. Pertinently, the Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by

the Constitutional Commissions shares certain characteristics - they do
not owe their existence to any act of Congress, but are created by
the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the
extent that the absence of 'independence' would result in the impairment of
their core functions"[163];

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman

must have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only [of] the express mandate of the
Constitution, but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of our
constitutional system is based";[164] and

(3) "[T]he constitutional deliberations explain the Constitutional

 204

Commissions' need for independence. In the deliberations of the 1973

Constitution, the delegates amended the 1935 Constitution by providing for
a constitutionally-created Civil Service Commission, instead of one created
by law, on the premise that the effectivity of this body is dependent
on its freedom from the tentacles of politics. In a similar manner, the
deliberations of the 1987 Constitution on the Commission on Audit
highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure."[165]

At bottom, the decisive ruling in Gonzales III, however, was that the
independence of the Office of the Ombudsman, as well as that of the
foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:

[T]he independent constitutional commissions have been consistently

intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential
interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA
358), we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the
control of the President, even if they discharge functions that are
executive in nature. The Court declared as unconstitutional the President's
act of temporarily appointing the respondent in that case as Acting
Chairman of the [Commission on Elections] "however well-meaning" it
might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court

categorically stated that the tenure of the commissioners of the independent
Commission on Human Rights could not be placed under the
discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman

certainly cannot be inferior - but is similar in degree and kind - to the
independence similarly guaranteed by the Constitution to the Constitutional
Commissions since all these offices fill the political interstices of a
republican democracy that are crucial to its existence and proper
functioning.[166] (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which

 205

provides that "[a] Deputy or the Special Prosecutor, may be removed from
office by the President for any of the grounds provided for the removal of the
Ombudsman, and after due process," partially unconstitutional insofar as it
subjected the Deputy Ombudsman to the disciplinary authority of the
President for violating the principle of independence. Meanwhile, the
validity of Section 8 (2), RA 6770 was maintained insofar as the Office of the
Special Prosecutor was concerned since said office was not considered to be
constitutionally within the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys under the Constitution.[167]

As may be deduced from the various discourses in Gonzales III, the concept
of Ombudsman's independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot
be abolished, nor its constitutionally specified functions and privileges, be
removed, altered, or modified by law, unless the Constitution itself allows,
or an amendment thereto is made;

Second: fiscal autonomy, which means that the office "may not be
obstructed from [its] freedom to use or dispose of [its] funds for purposes
germane to [its] functions;[168] hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to impair
said functions; and

Third: insulation from executive supervision and control, which

means that those within the ranks of the office can only be disciplined by an
internal authority.

Evidently, all three aspects of independence intend to protect the Office of

the Ombudsman from political harassment and pressure, so as to free
it from the "insidious tentacles of politics."[169]

That being the case, the concept of Ombudsman independence cannot be

invoked as basis to insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts are apolitical bodies, which
are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of
judicial power - that is, a provisional writ of injunction against a preventive
suspension order - clearly strays from the concept's rationale of insulating
the office from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
 206

The Ombudsman's erroneous abstraction of her office's independence

notwithstanding, it remains that the first paragraph of Section 14, RA 6770
textually prohibits courts from extending provisional injunctive relief to
delay any investigation conducted by her office. Despite the usage of the
general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the
Supreme Court.[170] As support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an

amendment is necessary. I would just like to inquire for the record
whether below the Supreme Court, it is understood that there is
no injunction policy against the Ombudsman by lower courts.
Or, is it necessary to have a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will
prevent an injunction against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this

being one of the highest constitutional bodies, is to subject this
only to certiorari to the Supreme Court. I think an injunction
from the Supreme Court is, of course, in order but no lower
courts should be allowed to interfere. We had a very bad experience
with even, let us say, the Forestry Code where no injunction is supposed to
be issued against the Department of Natural Resources. Injunctions are
issued right and left by RTC judges all over the country.

The President. Why do we not make an express provision to that

effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts

other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same

is approved.[171]

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII
of the 1987 Constitution, acts of the Ombudsman, including interlocutory
orders, are subject to the Supreme Court's power of judicial review As a
corollary, the Supreme Court may issue ancillary mjunctive writs or
provisional remedies in the exercise of its power of judicial review over
matters pertaining to ongoing investigations by the Office of the
 207

Ombudsman. Respecting the CA, however, the Ombudsman begs to differ.

[172]

With these submissions, it is therefore apt to examine the validity of the first
paragraph of Section 14, RA 6770 insofar as it prohibits all courts, except
this Court, from issuing provisional writs of injunction to enjoin an
Ombudsman investigation. That the constitutionality of this provision is
the lis mota of this case has not been seriously disputed. In fact, the issue
anent its constitutionality was properly raised and presented during the
course of these proceedings.[173] More importantly, its resolution is clearly
necessary to the complete disposition of this case.[174]

In the enduring words of Justice Laurel in Angara v. The Electoral

Commission (Angara),[175] the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the
legislative[,] and the judicial departments of the government." [176] The
constitutional demarcation of the three fundamental powers of government
is more commonly known as the principle of separation of powers. In the
landmark case of Belgica v. Ochoa, Jr. (Belgica),[177] the Court held that
"there is a violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another." [178] In
particular, "there is a violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another department's
functions."[179]

Under Section 1, Article VIII of the 1987 Constitution, judicial power is

allocated to the Supreme Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all

other lower courts may be established by laws passed by
Congress.  Thus, through the passage of Batas Pambansa Bilang (BP) 129,
[180]
 known as "The Judiciary Reorganization Act of 1980," the Court of
Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts [183] were
established. Later, through the passage of RA 1125,[184] and Presidential
Decree No. (PD) 1486,[185] the Court of Tax Appeals, and the Sandiganbayan
 208

were respectively established.

In addition to the authority to establish lower courts, Section 2,

Article VIII of the 1987 Constitution empowers Congress to define,
prescribe, and apportion the jurisdiction of all courts, except that
it may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5[186] of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and
apportion the jurisdiction of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

xxxx

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction

over the subject matter of an action. In The Diocese ofBacolod v.
Commission on Elections,[187] subject matter jurisdiction was defined as "the
authority 'to hear and determine cases of the general class to
which the proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines its
powers.'"

Among others, Congress defined, prescribed, and apportioned the subject

matter jurisdiction of this Court (subject to the aforementioned
constitutional limitations), the Court of Appeals, and the trial courts,
through the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over

Binay, Jr.'s main petition for certiorari in CA-G.R. SP No. 139453 is
Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus,

prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate
jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not

only original but also concurrent with the Regional Trial Courts (under
Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section
5, Article VIII of the 1987 Philippine Constitution). In view of the
concurrence of these courts' jurisdiction over petitions for certiorari,
 209

the doctrine of hierarchy of courts should be followed. In People v.

Cuaresma,[188] the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according

to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming
regard for that judicial hierarchy most certainly indicates that petitions for
the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals.[189]

When a court has subject matter jurisdiction over a particular case, as

conferred unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is called judicial power.

Judicial power, as vested in the Supreme Court and all other courts
established by law, has been defined as the "totality of powers a court
exercises when it assumes jurisdiction and hears and decides a
case."[190] Under Section 1, Article VIII of the 1987 Constitution, it includes
"the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."

In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of

judicial power under the 1987 Constitution:

The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred by law. The
second part of the authority represents a broadening of f judicial power to
enable the courts of justice to review what was before forbidden territory, to
wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of
the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because they are tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave abuse of
 210

discretion," which is a very elastic phrase that can expand or contract

according to the disposition of the judiciary.[192]

Judicial power is never exercised in a vacuum. A court's exercise of the

jurisdiction it has acquired over a particular case conforms to the
limits and parameters of the rules of procedure duly
promulgated by this Court. In other words, procedure is the framework
within which judicial power is exercised. In Manila Railroad Co. v.
Attorney-General,[193] the Court elucidated that "[t]he power or authority of
the court over the subject matter existed and was fixed before procedure in a
given cause began. Procedure does not alter or change that power or
authority; it simply directs the manner in which it shall be fully
and justly exercised.  To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely,
the court attempting to exercise it loses the power to exercise it legally. This
does not mean that it loses jurisdiction of the subject matter." [194]

While the power to define, prescribe, and apportion the jurisdiction of the
various courts is, by constitutional design, vested unto Congress, the
power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts belongs exclusively to this Court. Section 5
(5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement

of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court.
(Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the

evolution of its rule-making authority, which, under the 1935[196] and 1973
Constitutions,[197] had been priorly subjected to a power-sharing scheme
with Congress.[198] As it now stands, the 1987 Constitution textually
altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the
Court's rule-making powers, in line with the Framers' vision of
 211

institutionalizing a "[s]tronger and more independent judiciary."[199]

The records of the deliberations of the Constitutional Commission would

show[200] that the Framers debated on whether or not the Court's rule-
making powers should be shared with Congress. There was an initial
suggestion to insert the sentence "The National Assembly may repeal, alter,
or supplement the said rules with the advice and concurrence of the
Supreme Court", right after the phrase "Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged^" in the enumeration of
powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino
proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with the
concurrence of the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the Committee members agreed to
Commissioner Aquino's proposal to delete the phrase "the National
Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino
agreed to withdraw his proposal to add "the phrase with the concurrence
of the National Assembly." The changes were approved, thereby
leading to the present lack of textual reference to any form of
Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies,
the Supreme Court and the Legislature, have their inherent
powers."[201]

Thus, as it now stands, Congress has no authority to repeal, alter, or

supplement rules concerning pleading, practice, and procedure. As
pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first
time was given the power to promulgate rules concerning the protection and
enforcement of constitutional rights. The Court was also r granted for the
first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution
took away the power of Congress to repeal, alter, or supplement
rules concerning pleading, practice and procedure. In fine, the
power to promulgate rules of pleading, practice and procedure is
no longer shared by this Court with Congress, more so with the
Executive.[202] (Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various
rules of procedure, among others, the current 1997 Rules of Civil
Procedure. Identifying the appropriate procedural remedies
 212

needed for the reasonable exercise of every court's judicial

power, the provisional remedies of temporary restraining orders
and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both

constitute temporary measures availed of during the pendency of the action.
They are, by nature, ancillary because they are mere incidents in and are
dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary
injunction, whether prohibitory or mandatory, is to preserve
the status quo[203] until the merits of the case can be heard. They are
usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or
threatening the immediate commission of an act that will cause irreparable
injury or destroy the status quo of the controversy before a full hearing can
be had on the merits of the case. In other words, they are preservative
remedies for the protection of substantive rights or interests, and, hence,
not a cause of action in itself, but merely adjunct to a main suit. [204] In a
sense, they are regulatory processes meant to prevent a case from being
mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the

provisional remedies of a TRO and a WPI. A preliminary injunction is
defined under Section 1,[205] Rule 58, while Section 3[206] of the same Rule
enumerates the grounds for its issuance. Meanwhile, under Section
5[207] thereof, a TRO may be issued as a precursor to the issuance of a writ of
preliminary injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides

with its inherent power to issue all auxiliary writs, processes, and
other means necessary to carry its acquired jurisdiction into
effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction

is conferred on a court or judicial officer, all auxiliary writs, f processes and
other means necessary to carry it into effect may be employed by such court
or officer; and if the procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by law[208] or by these rules, any
suitable process or mode of proceeding may be adopted which appears
comfortable to the spirit of the said law or rules.

In City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he

supervisory power or jurisdiction of the [Court of Tax Appeals] to issue a
writ of certiorari in aid of its appellate jurisdiction"[210] over "decisions,
orders or resolutions of the RTCs in local tax cases originally decided or
 213

resolved by them in the exercise of their original or appellate

jurisdiction,"[211] the Court ruled that said power "should coexist with, and be
a complement to, its appellate jurisdiction to review, by appeal, the final
orders and decisions of the RTC, in order to have complete supervision over
the acts of the latter:"[212]

A grant of appellate jurisdiction implies that there is included in it

the power necessary to exercise it effectively, to make all orders
that ; will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to
protect that jurisdiction and to make the decisions of the court thereunder
effective. The court, in aid of its appellate jurisdiction, has authority to
control all auxiliary and incidental matters necessary to the efficient and
proper exercise of that jurisdiction. For this purpose, it may, when
necessary, prohibit or restrain the performance of any act which might
interfere with the proper exercise of its rightful jurisdiction in cases pending
before it.[213] (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court

endowed with subject matter jurisdiction:

[A] court which is endowed with a particular jurisdiction should have

powers which are necessary to enable it to act effectively within such
jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in
order to enforce its rules of practice and to suppress any abuses
of its process and to t defeat any attempted thwarting of such
process.

x x x x 

Indeed, courts possess certain inherent powers which may be said to be

implied from a general grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers as are
necessary for the ordinary and efficient exercise of jurisdiction;
or are essential to the existence, dignity and functions of the
courts, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain the
court's jurisdiction and render it effective in behalf of the
litigants.[214] (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-
entrenched constitutional principle, articulated way back in the 1936 case
 214

of Angara, that "where a general power is conferred or duty enjoined, every

particular power necessary for the exercise of the one or the performance of
the other is also conferred."[215]

In the United States, the "inherent powers doctrine refers to the

principle, by which the courts deal with diverse matters over which they are
thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of
inherent powers, a court must show that the powers are reasonably
necessary to achieve the specific purpose for which the exercise is
sought. Inherent powers enable the judiciary to accomplish its
constitutionally mandated functions."[216]

In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality of

a statute which prohibited courts from enjoining the enforcement of a
revocation order of an alcohol beverage license pending appeal, [218] the
Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that

which is reasonably necessary for the administration of justice
within the scope of their jurisdiction. x x x [W]e said while
considering the rule making power and the judicial power to be one and the
same that ". . . the grant of judicial power [rule making power] to
the courts by the constitution carries with it, as a necessary
incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional

injunctive relief as an exercise of the court's inherent power, and to this end,
stated that any attempt on the part of Congress to interfere with the same
was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the

language framework of 28 Am.Jur.2d, Injunctions, Section 15, and once and
for all make clear that a court, once having obtained jurisdiction of a cause
of action, has, as an incidental to its constitutional grant of power, inherent
power to do all things reasonably necessary to the administration of justice
in the case before it. In the exercise of this power, a court, when
necessary in order to protect or preserve the subject matter of the
litigation, to protect its jurisdiction and to make its judgment
effective, may grant or issue a temporary injunction in aid of or
ancillary to the principal action.

The control over this inherent judicial power, in this particular

 215

instance the injunction, is exclusively within the constitutional

realm of the courts. As such, it is not within the purview of the
legislature to grant or deny the power nor is it within the purview
of the legislature to shape or fashion circumstances under which
this inherently judicial power may be or may not be granted or
denied.

This Court has historically recognized constitutional limitations upon the

power of the legislature to interfere with or to inhibit the performance of
constitutionally granted and inherently provided judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having

obtained jurisdiction of a cause of action, has, as incidental to its general
jurisdiction, inherent power to do all things reasonably necessary f to the
administration of justice in the case before it. . ." This includes the
inherent power to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right

to appeal in the statute does not necessarily mean that it could control the
appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal
does not give it the right to encroach upon the constitutionally granted
powers of the judiciary. Once the administrative action has ended
and the right to appeal arises the legislature is void of any right to
control a subsequent appellate judicial proceeding. The judicial
rules have come into play and have preempted the field.
[219]
 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress
passed the first paragraph of Section 14, RA 6770 and, in so doing, took
away from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this
Court's constitutional rule-making authority. Clearly, these issuances, which
are, by nature, provisional reliefs and auxiliary writs created under the
provisions of the Rules of Court, are matters of procedure which belong
exclusively within the province of this Court. Rule 58 of the Rules of Court
did not create, define, and regulate a right but merely prescribed the means
of implementing an existing right[220] since it only provided for temporary
reliefs to preserve the applicant's right in esse which is threatened to be
violated during the course of a pending litigation. In the case of Fabian,[211] it
was stated that:
 216

If the rule takes away a vested right, it is not procedural. If the rule creates a
right such as the right to appeal, it may be classified as a substantive matter;
but if it operates as a means of implementing an existing right then the rule
deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the
exercise of its legislative power, to amend the Rules of Court, as in the cases
of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/ Docket Fees;[222] (b) Re: Petition for Recognition of the
Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;[223] and (c) Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Cabato-Cortes[224] While these cases
involved legislative enactments exempting government owned and
controlled corporations and cooperatives from paying filing fees, thus,
effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it
was, nonetheless, ruled that the prerogative to amend, repeal or even
establish new rules of procedure[225] solely belongs to the Court, to
the exclusion of the legislative and executive branches of
government. On this score, the Court described its authority to
promulgate rules on pleading, practice, and procedure as exclusive and
"[o]ne of the safeguards of [its] institutional independence."[226]

That Congress has been vested with the authority to define, prescribe, and
apportion the jurisdiction of the various courts under Section 2, Article
VIII supra, as well as to create statutory courts under Section 1, Article
VIII supra, does not result in an abnegation of the Court's own power to
promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are
nonetheless institutionally separate and distinct, each to be preserved under
its own sphere of authority. When Congress creates a court and
delimits its jurisdiction, the procedure for which its jurisdiction
is exercised is fixed by the Court through the rules it promulgates.
The first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting
provision, as the Ombudsman misconceives,[227] because it does not define,
prescribe, and apportion the subject matter jurisdiction of courts to act
on certiorari cases; the certiorari jurisdiction of courts, particularly the CA,
stands under the relevant sections of BP 129 which were not shown to have
been repealed. Instead, through this provision, Congress interfered with
a provisional remedy that was created by this Court under its
duly promulgated rules of procedure, which utility is both
integral and inherent to every court's exercise of judicial power.
Without the Court's consent to the proscription, as may be
manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor,
 217

there thus, stands to be a violation of the separation of powers

principle.

In addition, it should be pointed out that the breach of Congress in

prohibiting provisional injunctions, such as in the first paragraph of Section
14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted
by supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly, the
court's acquired jurisdiction, through which it exercises its judicial power, is
rendered nugatory. Indeed, the force of judicial power, especially under the
present Constitution, cannot be enervated due to a court's inability to
regulate what occurs during a proceeding's course. As earlier intimated,
when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true
meaning to the judicial power contemplated by the Framers of our
Constitution, the Court's duly promulgated rules of procedure should
therefore remain unabridged, this, even by statute. Truth be told, the policy
against provisional injunctive writs in whatever variant should only subsist
under rules of procedure duly promulgated by the Court given its sole
prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F.

Leonen (Justice Leonen) and the Acting Solicitor General Florin T. Hilbay
(Acting Solicitor General Hilbay) mirrors the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of
Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I
will be mistaken under the rubric of what is called provisional remedies, our
resident expert because Justice Peralta is not here so Justice Bersamin for a
while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article
VIII of the Constitution, if you have a copy of the Constitution, can you
 218

please read that provision? Section 5, Article VIII the Judiciary

subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts..."

JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice
and procedure in all courts. This is the power, the competence, the
jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2
which we've already been discussed with you by my other colleagues, is that
not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress,
is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that
not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is
it part of litigation in an ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
 219

In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of
litigation, it will not be rendered moot and academic, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under
Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create
remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the
power to issue the supplemental pleading called the bill of t particular [s]? It
cannot, because that's part of procedure...

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
 220

So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the
part of a court that was created by Congress. In the absence of jurisdiction...
(interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they
create a special agrarian court it has all procedures with it but it does not
attach particularly to that particular court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a
TRO? It was a Rule. A rule of procedure and the Rules of Court, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is
[an] ancillary to a particular injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx[228] (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010, [229] the Court

instructed that "[i]t is through the Constitution that the fundamental powers
of government are established, limited and defined, and by which these
powers are distributed among the several departments. The Constitution is
the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer." It
would then follow that laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.[230]

However, despite the ostensible breach of the separation of powers

principle, the Court is not oblivious to the policy considerations behind the
first paragraph of Section 14, RA 6770, as well as other statutory provisions
of similar import. Thus, pending deliberation on whether or not to adopt the
 221

same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against
courts other than the Supreme Court from issuing provisional injunctive
writs to enjoin investigations conducted by the Office of the Ombudsman,
until it is adopted as part of the rules of procedure through an
administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through

passing the first paragraph of Section 14, RA 6770) without the Court's
consent thereto, it remains that the CA had the authority to issue the
questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the
CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of
BP 129, as amended, and which it had already acquired over the main CA-
G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely

abused its jurisdiction in issuing the TRO and WPI in CA-G.R. SP No.
139453 against the preventive suspension order is a persisting objection to
the validity of said injunctive writs. For its proper analysis, the Court first
provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive

suspension order.

By nature, a preventive suspension order is not a penalty but only a

preventive measure. In Quimbo v. Acting Ombudsman Gervacio,[231] the
Court explained the distinction, stating that its purpose is to prevent
the official to be suspended from using his position and the
powers and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the
prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension

as preventive measure and suspension as penalty. The distinction, by
considering the purpose aspect of the suspensions, is readily cognizable as
they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a

preliminary step in an administrative investigation. The purpose
of the suspension order is to prevent the accused from using his
 222

position and the powers and prerogatives of his office to

influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found
guilty of acts warranting his suspension or removal, then he is suspended,
removed or dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by

Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987 (Executive Order No. 292) and other Pertinent
Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for
misconduct in office but is considered to be a preventive measure.
(Emphasis supplied)
Not being a penalty, the period within which one is under preventive
suspension is not considered part of the actual penalty of suspension. So
Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged is
placed under preventive suspension shall not be considered part of the
actual penalty of suspension imposed upon the employee found guilty.
[232]
 (Emphases supplied)

The requisites for issuing a preventive suspension order are explicitly stated
in Section 24, RA 6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may

preventively suspend any officer or employee under his authority pending
an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued stay
in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six (6) months, without pay,
except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in
which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Emphasis and underscoring
supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to
 223

justify the issuance of an order of preventive suspension pending an

investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty;

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed
against him.[233]

B. The basis of the CA's injunctive writs is the condonation

doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however,

show that the Ombudsman's non-compliance with the requisites provided in
Section 24, RA 6770 was not the basis for the issuance of the assailed
injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the
assailed TRO was based on the case of Governor Garcia, Jr. v.
CA[234] (Governor Garcia, Jr.), wherein the Court emphasized that "if it
were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term,
then, following settled jurisprudence, he can no longer be administratively
charged."[235] Thus, the Court, contemplating the application of the
condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the very
least, on account of the extreme urgency of the matter and the seriousness of
the issues raised in the certiorari petition, issued a TRO x x x"[236] during
the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of
the assailed WPI was based on the condonation doctrine, citing the case
of Aguinaldo v. Santos[237] The CA held that Binay, Jr. has an ostensible
right to the final relief prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from
2007 to 2013.[238] Moreover, the CA observed that although there were acts
 224

which were apparently committed by Binay, Jr. beyond his first term , i.e.,
the alleged payments on July 3, 4, and 24, 2013,[239] corresponding to the
services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,[240] and Mayor Garcia v. Mojica,[241] wherein the
condonation dobtrine was applied by the Court although the payments were
made after the official's election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election. [242]

The Ombudsman contends that it was inappropriate for the CA to have

considered the condonation doctrine since it was a matter of defense which
should have been raised and passed upon by her office during the
administrative disciplinary proceedings.[243] However, the Court agrees with
the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in
conformity with the ruling in Governor Garcia, Jr., which was the
subsisting jurisprudence at that time. Thus, since condonation was duly
raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453, [244] the CA did
not err in passing upon the same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was not strong in his petition
in CA-G.R. SP No. 139453,[245] it appears that the CA found that the
application of the condonation doctrine was already sufficient to enjoin the
implementation of the preventive suspension order. Again, there is nothing
aberrant with this since, as remarked in the same case of Governor Garcia,
Jr., if it was established that the acts subject of the administrative complaint
were indeed committed during Binay, Jr.'s prior term, then, following the
condonation doctrine, he can no longer be administratively charged. In
other words, with condonation having been invoked by Binay, Jr. as an
exculpatory affirmative defense at the onset, the CA deemed it unnecessary
to determine if the evidence of guilt against him was strong, at least for the
purpose of issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs
herein laid down, the Court now proceeds to determine if the CA gravely
abused its discretion in applying the condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or

implied forgiveness of an offense, [especially] by treating the offender
as if there had been no offense."[246]

The condonation doctrine - which connotes this same sense of complete

extinguishment of liability as will be herein elaborated upon - is not based
on statutory law. It is a jurisprudential creation that originated from
 225

the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,

[247]
 (Pascual), which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San

Jose, Nueva Ecija, sometime in November 1951, and was later re-elected to
the same position in 1955. During his second term, or on October 6,
1956, the Acting Provincial Governor filed administrative charges before
the Provincial Board of Nueva Ecija against him for grave abuse of authority
and usurpation of judicial functions for acting on a criminal complaint in
Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo
Pascual argued that he cannot be made liable for the acts charged against
him since they were committed during his previous term of office, and
therefore, invalid grounds for disciplining him during his second term. The
Provincial Board, as well as the Court of First Instance of Nueva Ecija, later
decided against Arturo Pascual, and when the case reached this Court on
appeal, it recognized that the controversy posed a novel issue - that is,
whether or not an elective official may be disciplined for a wrongful act
committed by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and "found that cases on
the matter are conflicting due in part, probably, to differences in statutes
and constitutional provisions, and also, in part, to a divergence of views with
respect to the question of whether the subsequent election or appointment
condones the prior misconduct."[248] Without going into the variables
of these conflicting views and cases, it proceeded to state that:

The weight of authorities x x x seems to incline toward the rule

denying the right to remove one from office because of
misconduct during a prior term, to which we fully subscribe.
[249]
 (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered
that there is really no established weight of authority in the United States
(US) favoring the doctrine of condonation, which, in the words of Pascual,
theorizes that an official's re-election denies the right to remove him from
office due to a misconduct during a prior term. In fact, as pointed out during
the oral arguments of this case, at least seventeen (17) states in the US have
abandoned the condonation doctrine.[250] The Ombudsman aptly cites
several rulings of various US State courts, as well as literature published on
the matter, to demonstrate the fact that the doctrine is not uniformly
applied across all state jurisdictions. Indeed, the treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a
public officer from his current term or office for misconduct which he
 226

allegedly committed in a prior term of office is governed by the language of

the statute or constitutional provision applicable to the facts of a particular
case (see In Re Removal of Member of Council Coppola).[251] As an example,
a Texas statute, on the one hand, expressly allows removal only for an act
committed during a present term: "no officer shall be prosecuted or
removed from office for any act he may have committed prior to his election
to office" (see State ex rel. Rowlings v. Loomis).[252] On the other hand, the
Supreme Court of Oklahoma allows removal from office for "acts of
commission, omission, or neglect committed, done or omitted during a
previous or preceding term of office" (see State v. Bailey)[253] Meanwhile, in
some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office."
On one end, the Supreme Court of Ohio strictly construed a removal statute
containing the phrase "misfeasance of malfeasance in office" and thereby
declared that, in the absence of clear legislative language making, the word
"office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court
of Cuyahoga County)[254] Similarly, the Common Pleas Court of Allegheny
County, Pennsylvania decided that the phrase "in office" in its state
constitution was a time limitation with regard to the grounds of removal, so
that an officer could not be removed for misbehaviour which occurred; prior
to the taking of the office (see Commonwealth v. Rudman)[255] The opposite
was construed in the Supreme Court of Louisiana which took the view that
an officer's inability to hold an office resulted from the commission of
certain offenses, and at once rendered him unfit to continue in office, adding
the fact that the officer had been re-elected did not condone or purge the
offense (see State ex rel. Billon v. Bourgeois).[256] Also, in the Supreme Court
of New York, Apellate Division, Fourth Department, the court construed the
words "in office" to refer not to a particular term of office but to an entire
tenure; it stated that the whole purpose of the legislature in enacting the
statute in question could easily be lost sight of, and the intent of the law-
making body be thwarted, if an unworthy official could not be removed
during one term for misconduct for a previous one (Newman v. Strobel).[257]

(2) For another, condonation depended on whether or not the public officer
was a successor in the same office for which he has been administratively
charged. The "own-successor theory," which is recognized in numerous
States as an exception to condonation doctrine, is premised on the idea that
each term of a re-elected incumbent is not taken as separate and distinct,
but rather, regarded as one continuous term of office. Thus, infractions
committed in a previous term are grounds for removal because a re-elected
incumbent has no prior term to speak of[258] (see Attorney-General v. Tufts;
[259]
 State v. Welsh;[260] Hawkins v. Common Council of Grand Rapids;
[261]
 Territory v. Sanches;[262] and Tibbs v. City of Atlanta).[263]
 227

(3) Furthermore, some State courts took into consideration the continuing
nature of an offense in cases where the condonation doctrine was invoked.
In State ex rel. Douglas v. Megaarden,[264] the public officer charged with
malversation of public funds was denied the defense of condonation by the
Supreme Court of Minnesota, observing that "the large sums of money
illegally collected during the previous years are still retained by him."
In State ex rel. Beck v. Harvey[265] the Supreme Court of Kansas ruled that
"there is no necessity" of applying the condonation doctrine since "the
misconduct continued in the present term of office[;] [thus] there was a duty
upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,[266] the
Supreme Court of Kansas held that "insofar as nondelivery and excessive
prices are concerned, x x x there remains a continuing duty on the part of
the defendant to make restitution to the country x x x, this duty extends into
the present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion

in Pascual that there is a "weight of authority" in the US on the condonation
doctrine. In fact, without any cogent exegesis to show that Pascual had
accounted for the numerous factors relevant to the debate on condonation,
an outright adoption of the doctrine in this jurisdiction would not have been
proper.

At any rate, these US cases are only of persuasive value in the process of this
Court's decision-making. "[They] are not relied upon as precedents, but as
guides of interpretation."[267] Therefore, the ultimate analysis is on whether
or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note
that the doctrine of stare decisis does not preclude this Court from revisiting
existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations
against its application.[268] In other words, stare decisis becomes an
intractable rule only when circumstances exist to preclude reversal of
standing precedent.[269] As the Ombudsman correctly points out,
jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic
creature that develops and devolves along with the society within which it
thrives.[270] In the words of a recent US Supreme Court Decision, "[w]hat we
can decide, we can undecide."[271]

In this case, the Court agrees with the Ombudsman that since the
time Pascual was decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting,
including, of course, the sheer impact of the condonation doctrine on public
 228

accountability, calls for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are

generally held not to furnish cause for removal and this is especially
true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and
disqualification from holding office for the term for which the
officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs.
State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex
rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher
County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other
terms x x x.[272]

Second, an elective official's re-election serves as a condonation of previous

misconduct, thereby cutting the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's

previous misconduct to the extent of cutting off the right to remove him
therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So.
559, 50 L.R.A. (NS) 553.[273] (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have
known the life and character of candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281,

63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive the people of
their right to elect their officers. When the people have elected a man
to office, it must be assumed that they did this with knowledge of
his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the
 229

court, by reason of such faults or misconduct to practically overrule the will

of the people.[274] (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first

applied the condonation doctrine, thereby quoting the above-stated
passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein the Court

clarified that the condonation doctrine does not apply to a criminal
case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the Philippines
as a community, and is a public wrong to the State at large; whereas, in the
latter, only the populace of the constituency he serves is affected. In
addition, the Court noted that it is only the President who may pardon a
criminal offense.

(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a

case decided under the 1987 Constitution wherein the condonation
doctrine was applied in favor of then Cagayan Governor Rodolfo E.
Aguinaldo although his re-election merely supervened the pendency
of, the proceedings.

(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the

Court reinforced the condonation doctrine by stating that the
same is justified by "sound public policy." According to the Court,
condonation prevented the elective official from being "hounded" by
administrative cases filed by his "political enemies" during a new term, for
which he has to defend himself "to the detriment of public service." Also, the
Court mentioned that the administrative liability condoned by re-election
covered the execution of the contract and the incidents related therewith. [279]

(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) -

wherein the benefit of the doctrine was extended to then Cebu City Mayor
Alvin B. Garcia who was administratively charged for his involvement in an
anomalous contract for the supply of asphalt for Cebu City, executed only
four (4) days before the upcoming elections. The Court ruled that
notwithstanding the timing of the contract's execution, the electorate is
presumed to have known the petitioner's background and character,
including his past misconduct; hence, his subsequent re-election was
deemed a condonation of his prior transgressions. More importantly, the
Court held that the determinative time element in applying the condonation
doctrine should be the time when the contract was perfected; this meant
that as long as the contract was entered into during a prior term,
 230

acts which were done to implement the same, even if done during
a succeeding term, do not negate the application of the
condonation doctrine in favor of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman[281] (Salumbides, Jr.;

April 23, 2010) - wherein the Court explained the doctrinal innovations in
the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the

doctrine. The condonation rule was applied even if the
administrative complaint was not filed before the reelection of
the public official, and even if the alleged misconduct occurred
four days before the elections, respectively. Salalima did not
distinguish as to the date of filing of the administrative complaint, as long as
the alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public official's culpability was committed
prior to the date of reelection.[282] (Emphasis supplied)

The Court, citing Civil Service Commission v. Sojor,[283] also clarified

that the condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -
wherein the Court remarked that it would have been prudent for the
appellate court therein to have issued a temporary restraining order against
the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo,

Salalima, Mayor Garcia, and Governor Garcia, Jr. - all cited by the CA to
justify its March 16, 2015 and April 6, 2015 Resolutions directing the
issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework
was never accounted for. What remains apparent from the text of these
cases is that the basis for condonation, as jurisprudential doctrine, was - and
still remains - the above-cited postulates of Pascual, which was lifted from
rulings of US courts where condonation was amply supported by their own
state laws. With respect to its applicability to administrative cases, the core
premise of condonation - that is, an elective official's re-election cuts qff the
right to remove him for an administrative offense committed during a prior
term - was adopted hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never tested against existing legal
norms. As in the US, the propriety of condonation is - as it should be
-dependent on the legal foundation of the adjudicating jurisdiction. Hence,
 231

the Court undertakes an examination of our current laws in order to

determine if there is legal basis for the continued application of the doctrine
of condonation.

The foundation of our entire legal system is the Constitution. It is the

supreme law of the land;[284] thus, the unbending rule is that every statute
should be read in light of the Constitution.[285] Likewise, the Constitution is a
framework of a workable government; hence, its interpretation must take
into account the complexities, realities, and politics attendant to the
operation of the political branches of government.[286]

As earlier intimated, Pascual was a decision promulgated in 1959.

Therefore, it was decided within the context of the 1935 Constitution which
was silent with respect to public accountability, or of the nature of public
office being a public trust. The provision in the 1935 Constitution that comes
closest in dealing with public office is Section 2, Article II which states that
"[t]he defense of the State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal
military or civil service."[287] Perhaps owing to the 1935 Constitution's silence
on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations,
there was no glaring objection confronting the Pascual Court in adopting
the condonation doctrine that originated from select US cases existing at
that time.

With the advent of the 1973 Constitution, the approach in dealing with
public officers underwent a significant change. The new charter introduced
an entire article on accountability of public officers, found in Article XIII.
Section 1 thereof positively recognized, acknowledged, and declared that
"[p]ublic office is a public trust." Accordingly, "[p]ublic officers and
employees shall serve with the highest degree of responsibility,
integrity, loyalty and efficiency, and shall remain accountable to
the people."

After the turbulent decades of Martial Law rule, the Filipino People have
framed and adopted the 1987 Constitution, which sets forth in the
Declaration of Principles and State Policies in Article II that "[t]he State
shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and
corruption."[288] Learning how unbridled power could corrupt public
servants under the regime of a dictator, the Framers put primacy on the
integrity of the public service by declaring it as a constitutional principle and
a State policy. More significantly, the 1987 Constitution strengthened and
solidified what has been first proclaimed in the 1973 Constitution by
commanding public officers to be accountable to the people at all times:
 232

Section 1. Public office is a public trust. Public officers and

employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency
and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution,

which states that "public office is a public trust," is an overarching reminder
that every instrumentality of government should exercise their official
functions only in accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a public
trust connotes accountability x x x.[289] (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under the
section of the Civil Service Commission,[290] and also, in the Code of Conduct
and Ethical Standards for Public Officials and Employees. [291]

For local elective officials like Binay, Jr., the grounds to discipline,

suspend or remove an elective local official from office are stated
in Section 60 of Republic Act No. 7160,[292] otherwise known as the
"Local Government Code of 1991" (LGC), which was approved on October 10
1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may

be disciplined, suspended, or removed from office on any of the r following
grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or
dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense
punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in
the case of members of the sangguniang panlalawigan, sangguniang
panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the
status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.
 233

Related to this provision is Section 40 (b) of the LGC which states

that those removed from office as a result of an administrative
case shall be disqualified from running for any elective local
position:

Section 40. Disqualifications. - The following persons are disqualified from

running for any elective local position:

xxxx

(b) Those removed from office as a result of an administrative

case;

x x x x (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that the penalty
of dismissal from service carries the accessory penalty of
perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility,

forfeiture of retirement benefits, perpetual disqualification from
holding public office, and bar from taking the civil service
examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of

suspension shall not exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision only
pertains to the duration of the penalty and its effect on the official's
candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense,
 234

nor shall said penalty be a bar to the candidacy of the respondent so

suspended as long as he meets the qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions
now leads this Court to the conclusion that the doctrine of condonation is
actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the
corollary requirement of accountability to the people at all times,
as mandated under the 1987 Constitution, is plainly inconsistent with the
idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was
elected to a second term of office, or even another elective post. Election is
not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any
administrative liability arising from an offense done during a prior term. In
this jurisdiction, liability arising from administrative offenses may
be condoned bv the President in light of Section 19, Article VII of the
1987 Constitution which was interpreted in Llamas v. Orbos[293] to apply to
administrative offenses:

The Constitution does not distinguish between which cases executive

clemency may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to provide
for the exclusion of impeachment cases from the coverage of Article VII,
Section 19 of the Constitution. Following petitioner's proposed
interpretation, cases of impeachment are automatically excluded inasmuch
as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason
why the President cannot grant executive clemency in administrative cases.
It is Our considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal
cases, with much more reason can she grant executive clemency in
administrative cases, which are clearly less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for
discipline enumerated therein cannot anymore be invoked against an
elective local official to hold him administratively liable once he is re-elected
to office. In fact, Section 40 (b) of the LGC precludes condonation since in
the first place, an elective local official who is meted with the penalty of
removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a)
 235

of the RRACCS imposes a penalty of perpetual disqualification from holding

public office as an accessory to the penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State

jurisdictions wherein the doctrine of condonation of administrative liability
was supported by either a constitutional or statutory provision stating, in
effect, that an officer cannot be removed by a misconduct committed
during a previous term,[294] or that the disqualification to hold the
office does not extend beyond the term in which the official's
delinquency occurred.[295] In one case,[296] the absence of a provision
against the re-election of an officer removed - unlike Section 40 (b) of the
LGC-was the justification behind condonation. In another case, [297] it was
deemed that condonation through re-election was a policy under their
constitution - which adoption in this jurisdiction runs counter to our
present Constitution's requirements on public accountability. There was
even one case where the doctrine of condonation was not adjudicated upon
but only invoked by a party as a ground;[298] while in another case, which was
not reported in full in the official series, the crux of the disposition was that
the evidence of a prior irregularity in no way pertained to the charge at issue
and therefore, was deemed to be incompetent.[299] Hence, owing to either
their variance or inapplicability, none of these cases can be used as basis for
the continued adoption of the condonation doctrine under our existing
laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the

penalty of suspension beyond the unexpired portion of the elective local
official's prior term, and likewise allows said official to still run for re-
election This treatment is similar to People ex rel Bagshaw v.
Thompson[300] and Montgomery v. Novell[301] both cited in Pascual, wherein
it was ruled that an officer cannot be suspended for a misconduct
committed during a prior term. However, as previously stated, nothing in
Section 66 (b) states that the elective local official's administrative liability is
extinguished by the fact of re-election. Thus, at all events, no legal provision
actually supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation

that the courts would be depriving the electorate of their right to elect their
officers if condonation were not to be sanctioned. In political law, election
pertains to the process by which a particular constituency chooses an
individual to hold a public office. In this jurisdiction, there is, again, no legal
basis to conclude that election automatically implies condonation. Neither is
there any legal basis to say that every democratic and republican state has
an inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then
the same should have been provided by law under our governing legal
 236

mechanisms. May it be at the time of Pascual or at present, by no means has

it been shown that such a law, whether in a constitutional or statutory
provision, exists. Therefore, inferring from this manifest absence, it cannot
be said that the electorate's will has been abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing

a local official, are assumed to have done so with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if
he had been guilty of any. Suffice it to state that no such presumption
exists in any statute or procedural rule.[302] Besides, it is contrary to
human experience that the electorate would have full knowledge of a public
official's misdeeds. The Ombudsman correctly points out the reality that
most corrupt acts by public officers are shrouded in secrecy, and concealed
from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate
when they cast their votes.[303] At a conceptual level, condonation
presupposes that the condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton[304] decided by
the New Jersey Supreme Court:

Many of the cases holding that re-election of a public official prevents his
removal for acts done in a preceding term of office are reasoned out on the
theory of condonation. We cannot subscribe to that theory because
condonation, implying as it does forgiveness, connotes knowledge and in the
absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the
condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way back
in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to
abandon the condonation doctrine that originated from Pascual, and
affirmed in the cases following the same, such as Aguinaldo, Salalima,
Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the
CA.

It should, however, be clarified that this Court's abandonment of the

condonation doctrine should be prospective in application for the reason
that judicial decisions applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of the Philippines. [305] Unto
this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained
in De Castro v. Judicial Bar Council.[306]
 237

Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce
obedience to them.[307]

Hence, while the future may ultimately uncover a doctrine's error, it should
be, as a general rule, recognized as "good law" prior to its abandonment.
Consequently, the people's reliance thereupon should be respected. The
landmark case on this matter is People v. Jabinal,[308] wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted,

the new doctrine should be applied prospectively, and should not apply to
parties who had relied on the old doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,[309] it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or

interpreting the laws or the Constitution shall form a part of the legal system
of the Philippines." But while our decisions form part of the law of the land,
they are also subject to Article 4 of the Civil Code which provides that "laws
shall have no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the law
looks forward not backward. The rationale against retroactivity is easy to
perceive. The retroactive application of a law usually divests rights that have
already become vested or impairs the obligations of contract and hence, is
unconstitutional.[310]

Indeed, the lessons of history teach us that institutions can greatly benefit
from hindsight and rectify its ensuing course. Thus, while it is truly
perplexing to think that a doctrine which is barren of legal anchorage was
able to endure in our jurisprudence for a considerable length of time, this
Court, under a new membership, takes up the cudgels and now abandons
the condonation doctrine.

E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or

not the CA committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed injunctive
writs.
 238

It is well-settled that an act of a court or tribunal can only be considered as

with grave abuse of discretion when such act is done in a capricious
or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to 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
and hostility.[311] It has also been held that "grave abuse of discretion
arises when a lower court or tribunal patently violates the
Constitution, the law or existing jurisprudence."[312]

As earlier established, records disclose that the CA's resolutions directing

the issuance of the assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. To recount, the March 16, 2015
Resolution directing the issuance of the subject TRO was based on the case
of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the
issuance of the subject WPI was based on the cases of Aguinaldo, Salalima,
Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following
settled precedents on the condonation doctrine, which at that time,
unwittingly remained "good law," it cannot be concluded that the CA
committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension
order was correctly issued.

With this, the ensuing course of action should have been for the CA to
resolve the main petition for certiorari in CA-G.R. SP No. 139453 on the
merits. However, considering that the Ombudsman, on October 9, 2015, had
already found Binay, Jr. administratively liable and imposed upon him the
penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative
charges against him, the said CA petition appears to have been mooted.
[313]
 As initially intimated, the preventive suspension order is only an
ancillary issuance that, at its core, serves the purpose of assisting the Office
of the Ombudsman in its investigation. It therefore has no more purpose -
and perforce, dissolves - upon the termination of the office's process of
investigation in the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of
the issue regarding the validity of the preventive suspension order subject of
this case does not preclude any of its foregoing determinations, particularly,
its abandonment of the condonation doctrine. As explained in Belgica, '"the
moot and academic principle' is not a magical formula that can
automatically dissuade the Court in resolving a case. The Court will decide
 239

cases, otherwise moot, if: first, there is a grave violation of the

Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public; and fourth, the case is capable of repetition yet evading
review."[314] All of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend
the Constitution if it were not to abandon the condonation doctrine now that
its infirmities have become apparent. As extensively discussed, the
continued application of the condonation doctrine is simply impermissible
under the auspices of the present Constitution which explicitly mandates
that public office is a public trust and that public officials shall be
accountable to the people at all times.

Second, the condonation doctrine is a peculiar jurisprudential creation that

has persisted as a defense of elective officials to escape administrative
liability. It is the first time that the legal intricacies of this doctrine have
been brought to light; thus, this is a situation of exceptional character which
this Court must ultimately resolve. Further, since the doctrine has served as
a perennial obstacle against exacting public accountability from the
multitude of elective local officials throughout the years, it is indubitable
that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires
the formulation of controlling principles to guide the bench, the bar, and the
public. The issue does not only involve an in-depth exegesis of
administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987
Constitution. The Court owes it to the bench, the bar, and the public to
explain how this controversial doctrine came about, and now, its reasons for
abandoning the same in view of its relevance on the parameters of public
office.

And fourth, the defense of condonation has been consistently invoked by

elective local officials against the administrative charges filed against them.
To provide a sample size, the Ombudsman has informed the Court that "for
the period of July 2013 to December 2014 alone, 85 cases from the Luzon
Office and 24 cases from the Central Office were dismissed on the ground of
condonation. Thus, in just one and a half years, over a hundred cases of
alleged misconduct - involving infractions such as dishonesty, oppression,
gross neglect of duty and grave misconduct - were placed beyond the reach
of the Ombudsman's investigatory and prosecutorial powers."[315] Evidently,
this fortifies the finding that the case is capable of repetition and must
therefore, not evade review.
 240

In any event, the abandonment of a doctrine is wholly within the prerogative

of the Court. As mentioned, it is its own jurisprudential creation and may
therefore, pursuant to its mandate to uphold and defend the Constitution,
revoke it notwithstanding supervening events that render the subject of
discussion moot.

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the
Court now rules on the final issue on whether or not the CA's
Resolution[316] dated March 20, 2015 directing the Ombudsman to comment
on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper
and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable

officer, she cannot be the subject of a charge for indirect
contempt[317] because this action is criminal in nature and the penalty
therefor would result in her effective removal from office.[318] However, a
reading of the aforesaid March 20, 2015 Resolution does not show that she
has already been subjected to contempt proceedings. This issuance, in? fact,
makes it clear that notwithstanding the directive for the Ombudsman to
comment, the CA has not necessarily given due course to Binay,
Jr.'s contempt petition:

Without necessarily giving due course to the Petition for

Contempt respondents [Hon. Conchita Carpio Morales, in her capacity as
the Ombudsman, and the Department of Interior and Local Government]
are hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an
inextendible period of three (3) days from receipt hereof. (Emphasis and
underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a

comment, wherein she may properly raise her objections to the contempt
proceedings by virtue of her being an impeachable officer, the CA, in the
exercise of its sound judicial discretion, may still opt not to give due course
to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply
put, absent any indication that the contempt petition has been given due
course by the CA, it would then be premature for this Court to rule on the
issue. The submission of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises

of this Decision, the Court resolves as follows:
 241

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

declared UNCONSTITUTIONAL, while the policy against the issuance of
provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under
the first paragraph of the said provision is DECLARED ineffective until the
Court adopts the same as part of the rules of procedure through an
administrative circular duly issued therefor;

(b) The condonation doctrine is ABANDONED, but the abandonment

is PROSPECTIVE in effect;

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar

Erwin S. Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R. SP No.
139453 in light of the Office of the Ombudsman's supervening issuance of its
Joint Decision dated October 9, 2015 finding Binay, Jr. administratively
liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-
A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's

comment, the CA is DIRECTED to resolve Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED.

G.R. No. 131012 April 21, 1999

HON. RICARDO T. GLORIA, in his capacity as Secretary of the

Department of Education, Culture, and Sports, petitioner,
vs.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS,
ELIZABETH A. SOMEBANG and NICANOR MARGALLO, respondents.

MENDOZA, J

This case arose out of the unfortunate strikes and walk-outs staged by
public school teachers on different dates in September and October 1990.
The illegality of the strikes was declared in our 1991 decision in Manila
Public School Teachers Association v. Laguio, Jr., 1 but many incidents of
those strikes are still to be resolved. At issue in this case is the right to back
salaries of teachers who were either dismissed or suspended because they
 242

did not report for work but who were eventually ordered reinstated because
they had not been shown to have taken part in the strike, although
reprimanded for being absent without leave.

The facts are as follows:

Private respondents are public school teachers. On various dates in

September and October 1990, during the teachers' strikes, they did not
report for work. For this reason, they were administratively charged with (1)
grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil
Service Law Rules and Regulations and reasonable office regulations. (4)
refusal to perform official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7) absence without leave
(AWOL), and placed under preventive suspension. The investigation was
concluded before the lapse of 90-day suspension and private respondents
were found guilty as charged. Respondent Nicanor Margallo was ordered
dismissed from the service effective October 29, 1990, while respondents
Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered
suspended for six months effective December 4, 1990. 2

Respondent Margallo appealed to the Merit Systems and Protection Board

(MSPB) which found him guilty of conduct prejudicial to the best interest of
the service and imposed on him a six-month suspension. 3 The other
respondents also appealed to the MSPB, but their appeal was dismissed
because of their failure to file their appeal memorandum on time. 4

On appeal, the Civil Service Commission (CSC) affirmed the decision of the
MSPB with respect to Margallo, but found the other three (Abad, Bandigas,
and Somebang) guilty only of violation of reasonable office rules and
regulation, by filing to file applications for leave of absence and, therefore,
reduced the penalty imposed on them to reprimand and ordered them
reinstated to their former positions.

Respondents filed a petition for certiorari under Rule 65 in this Court.

Pursuant to Revised Administrative Circular No. 1-95, the case referred to
the Court of Appeals which, on September 3, 1996, rendered a decision (1)
affirming the decision of the CSC with respect to Amparo Abad, Virgilia
Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC
ordered the suspension of Nicanor Margallo. The appellate court found him
guilty of violation of reasonable office rules and regulations only and
imposed on him the penalty of reprimand.

Private respondents moved for a reconsideration, contending that they

should be exonerated of all charges against them and that they be paid
salaries during their suspension. In its resolution, dated July 15, 1997, the
Court of Appeals, while maintaining its finding that private respondents were
 243

guilty of violation of reasonable office rules and regulations for which they
should be reprimanded, ruled that private respondents were entitled to the
payment of salaries during their suspension "beyond ninety (90) days."
Accordingly, the appellate court amended the dispositive portion of its
decision to read as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, petition is

hereby DENIED. CSC Resolution Nos., 93-2302 dated June 24,
1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad),
CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227
dated August 17, 1993 (In re: Virgilia Bandigas) and CSC
Resolution Nos. 93-2301 undated and 93-3125 dated August 10,
1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while
CSC Resolution Nos. 93-2211 dated June 21, l993 are hereby
MODIFIED finding petitioner Nicanor Margallo guilty of a lesser
offense of violation of reasonable office rules and regulations and
meting upon him the penalty of reprimand. Respondent DECS is
ordered to pay petitioners Amparo Abad, Virgilia Bandigas,
Elizabeth Somebang and Nicanor Margallo their salaries,
allowances and other benefits during the period of their
suspension/dismissal beyond the ninety (90) day preventive
suspension. No pronouncement as to costs. 6

Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and

Sports, moved for a reconsideration insofar as the resolution of the Court of
Appeals ordered the payment of private respondents' salaries during the
period of their appeal. 7 His motion was, however denied by the appellate
court in its resolution of October 6, 1997. 8 Hence, this petition for review
on certiorari.

Petitioner contends that the administrative investigation of respondents was

concluded within the 90-day period of preventive suspension, implying that
the continued suspension of private respondents is due to their appeal,
hence, the government of their salaries. Moreover, petitioner lays so much
store by the fact that, under the law, private respondents are considered
under preventive suspension during the period of their appeal and, for this
reason, are not entitled to the payment of their salaries during their
suspension. 9

Petitioner's contentions have no merit.

I. PREVENTIVE SUSPENSION AND THE RIGHT TO

COMPENSATION IN CASE OF EXONERATION
 244

The present Civil Service Law is found in Book V, Title I, Subtitle A of the
Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions
in this case, the law provides:

Sec. 47. Disciplinary Jurisdiction

(2) The Secretaries and heads of agencies and instrumetalities,

province, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action
against officers and employees under their jurisdiction. The
decision shall be final in case the penalty imposed is suspension
for not more than thirty days or fine in an amount not exceeding
thirty days salary. In case the decision rendered by a bureau or
office head is appealable to the Commission, the same may be
initially appealed to the department and finally to the Commission
and pending appeal, the same shall be executory except when
the penalty removal, in which case the same shall be executory
only after confirmation by the Secretary concerned.

(4) An appeal shall not stop the decision from being executory,
and in case the penalty is suspension or removal, the respondent
shall be considered shall be considered having been under
preventive suspension during the pendency of the appeal in the
event he wins an appeal.

Sec. 51. Preventive Suspension. — The proper disciplining

authority may preventively suspend any subordinate officer or
employee under his authority pending as investigation, if the
charge against such officers or employee involves dishonesty,
oppression or grave misconduct, or neglect in the performance of
duty, or if there are reasons to believe that the respondent is
guilty of charges which would warrant his removal from the
service.

Sec. 52. Lifting of Preventive Suspension, Pending Administrative

Investigation. — When the administrative case against the officers
or employee under preventive suspension is not finally decided by
the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondents,
the period of delay shall not be counted in computing the period of
suspension herein provided.
 245

There are thus two kinds of preventive suspension of civil service

employees who are charged with offenses punishable by removal or
suspension: (1) preventive suspension pending investigations (§51) and (2)
preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated (§ 47(4)).

Preventive suspension pending investigation is not a penalty. 10 It is a

measure intended to enable to enable the disciplining authority to
investigate charges against respondent by preventing the latter from
intimidating or any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered within that period,
the suspension will be lifted and the respondent will automatically be
reinstated. If after investigation respondent is found innocent of the charges
and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension Pending

Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period of suspension? As

already stated, the Court of Appeals ordered the DECS to pay private
respondents their salaries, allowances, and other benefits "beyond the
ninety (90) day suspension." In other words, no compensation was due for
the period of the preventive suspension pending investigation but only for
the period of preventive suspension pending appeal in the event the
employee is exonerated.

The separate opinion of Justice Panganiban argues that the employee

concerned be paid his salaries after his suspension.

The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of
such salaries in case of exoneration. Sec. 35 read:

Sec. 35. Lifting of Preventive Suspension Pending Administrative

Investigation. — When the administrative case against the officer
or employee under preventive suspension is not finally decided by
the Commissioner of Civil Service within the period of sixty (60)
days after the date of suspension of the respondent, the
respondent shall be reinstated in the service. If the respondent
officers or employee is exonerated, he shall be restored to his
position with pay for the period of suspension. 11

However, the law was revised in 1975 and the provision on the payment
salaries during suspension was deleted. Sec. 42 of the Civil Service Decree
(P.D. No. 807) read:
 246

Sec. 42. Lifting of Preventive Suspension Pending Administrative

Investigation. — When the administrative case against the officers
or employee under preventive suspension is not finally decided by
the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the
service; Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondent,
the period of delay shall not be counted in computing the period of
suspension herein provided.

This provision was reproduced in §52 of the present Civil Service Law.
It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770)
categorically provides that preventive suspension shall be "without
pay." Sec. 24 reads:

Sec. 24. Preventive Suspension. — The Ombudsman or his

Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondents
continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is

terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided.

It is clear that the purpose of the amendment is to disallow the payment of

salaries for the period of suspension. This conclusion is in accord with the
rule of statutory construction that —

As a rule, the amendment by deletion of certain words or phrases

in a statute indicates that the legislature intended to change the
meaning of the statute, for the presumption is that the legislature
would not have made the deletion had the intention been not in
effect a change in its meaning. The amended statute should
accordingly be given a construction different from that previous to
its amendment. 12
 247

The separate opinion of Justice Panganiban pays no heed to the evident

legislative intent to deny payment of salaries for the preventive suspension
pending investigation.

First, it says that to deny compensation for the period of preventive

suspension would he to reverse the course of decisions ordering the
payment of salaries for such period. However, the cases 13 cited are based
either on the former rule which expressly provided that "if the respondent
officer or employee is exonerated, he shall be restored to his position with
full pay for the period of suspension" 14 or that "upon subsequent
reinstatement of the suspended person or upon his exoneration, if death
should render reinstatement impossible, any salary so withheld shall be
paid, 15 or on cases which do not really support the proposition advanced.

Second, it is contended that the exoneration of employees who have been

preventively suspended is proof that there was no reason at all to suspend
them and thus makes their preventive suspension a penalty.

The principle governing entitlement to salary during suspension is cogently

stated in Floyd R. Mechem's A Treatise on the Law of Public Offices and
Officers as follows:

§864. Officer not entitled to Salary during Suspension from

Office. — An officer who has been lawfully suspended from his
office is not entitled to compensation for the period during which
he was so suspended, even through it be subsequently
determined that the cause for which he was suspended was
insufficient. The reason given is "that salary and perquisites are
the reward of express or implied services, and therefore cannot
belong to one who could not lawfully perform such services." 16

Thus, it is not enough that an employee is exonerated of the charges

against him. In addition, his suspension must be unjustified. The case
of Bangalisan v. Court of Appeals itself similarly states that "payment of
salaries corresponding to the period [1] when an employee is not allowed to
work may be decreed if he is found innocent of the charges which caused
his suspension and [2] when the suspension is unjustified. 17

The preventive suspension of civil service employees charged with

dishonesty, oppression or grave misconduct, or neglect of duty is authorized
by the Civil Service Law. It cannot, therefore, be considered "unjustified,"
even if later the charges are dismissed so as to justify the payment of
salaries to the employee concerned. It is one of those sacrifices which
holding a public office requires for the public good. For this reason, it is
limited to ninety (90) days unless the delay in the conclusion of the
investigation is due to the employee concerned. After that period, even if the
 248

investigation is not finished, the law provides that the employee shall be
automatically reinstated.

Third, it is argued in the separate opinion that to deny employees salaries

on the "frivolous" ground that the law does not provide for their payment
would be to provide a "tool for the oppression of civil servants who, though
innocent, may be falsely "charged of grave or less grave administrative
offenses." Indeed, the possibility of abuse is not an argument against
recognition of the existence of power. As Justice Story aptly it, "It is always
a doubtful course, to argue against the use or existence of a power, from
the possibility of its abuse. . . . [For] from the very nature of things, the
absolute right of decision, in the last resort, must rest somewhere —
wherever it may be vested it is susceptible of abuse." 18 It may be added
that if and when such abuse occurs, that would be the time for the courts to
exercise their nay-saying function. Until then, however, the public interest in
an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the law provides that
employees who are unjustly dismissed are entitled to reinstatement with full
pay. But that is because R.A. No. 6715 expressly provides for the payment
to such employees of "full backwages, inclusive of allowances, and . . .
other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement." 19 In the case of the public sector, as has been noted, the
provision for payment of salaries during the preventive suspension pending
investigation has been deleted.

B. Right to Compensation for Preventive Suspension

Pending Appeal if Employee is Exonerated

But although we hold that employees who are preventively

suspended pending investigation are not entitled to the payment of their
salaries if they are exonerated, we do not agree with the government that
they are not entitled to compensation for the period of their
suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation, as already discussed, is not a

penalty but only means of enabling the disciplining authority to conduct an
unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the administrative
decision finding him guilty is reversed. Hence, he should be reinstated with
full pay for the period of the suspension. Thus, §47(4) states that
respondent "shall be considered as under preventive suspension during the
pendency of the appeal in the event he wins." On the other hand, if his
 249

conviction is affirmed, i.e., if he is not exonerated, the period of his

suspension becomes part of the final penalty of suspension or dismissal.

It is precisely because respondent is penalized before his sentence is

confirmed that he should be paid his salaries in the event he is exonerated.
It would be unjust to deprive him of his pay as a result of the immediate
execution of the decision against him and continue to do so even after it is
shown that he is innocent of the charges for which he was suspended.
Indeed, to sustain the government's theory would be to make the
administrative decision not only executory but final and executory. The fact
is that §47(2) and (4) are similar to the execution of judgment pending
appeal under Rule 39, §2 of the Rules of Court. Rule 39, §5 provides that in
the event the executed judgment is reversed, there shall be restitution or
reparation of damages as equity and justice may require.

Sec. 47 of the present law providing that an administrative decision meting

out the penalty of suspension or dismissal shall be immediately executory
and that if the respondent appeals he shall be considered as being merely
under preventive suspension if eventually he prevails is taken from §37 of
the Civil Service Decree of 1975 (P.D No. 807). There was no similar
provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it
the Commissioner of Civil Service could order the immediate execution of
an administrative decision in the interest of the public service. 20 Nor was
there provision for immediate execution of administrative decisions ordering
dismissal or suspension in §695 of the Administrative Code of 1917, as
amended by C.A. No. 598, §1. 21 Nonetheless, under R.A. No. 2260 the
payment of salaries was ordered in cases in which employees were found to
be innocent of the charges 22 or their suspension was held to be unjustified,
because the penalty of suspension or dismissal was executed without a
finding by the Civil Service Commissioner that it was necessary "in the
interest of the public service." 23 On the other hand, payment of back
salaries was denied where it was shown that the employee concerned was
guilty as charged and the immediate execution of the decision was ordered
by the Civil Service Commissioner "in the interest of the public service." 24

Nothing in what has thus far been said is inconsistent with the reason for
denying salaries for the period of preventive suspension. We have said that
an employee who is exonerated is not entitled to the payment of his salaries
because his suspension, being authorized by law, cannot but unjustified. To
be entitled to such compensation, the employee must not only be found
innocent of the charges but his suspension must likewise be unjustified. But
through an employee is considered under preventive suspension during the
pendency of his appeal in the event he wins, his suspension is unjustified
because what the law authorizes is preventive suspension for a period not
exceeding 90 days. Beyond that period the suspension is illegal. Hence, the
employee concerned is entitled to reinstated with full pay. Under existing
 250

jurisprudence, such award should not exceed the equivalent of five years
pay at the rate last received before the suspension was imposed. 25

II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES

ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE

RULES AND REGULATIONS AND REPRIMANDED

Private respondents were exonerated of all charges against them for acts
connected with the teachers' strikes of September and October 1990.
Although they were absent from work, it was not because of the strike. For
being absent without leave, they were held liable for violation of reasonable
offices rules and regulations for which the penalty is a reprimand. Their case
thus falls squarely within ruling in Bangalisan, which likewise involved a
teacher found guilty of having violated reasonable office rules and
regulations. Explaining the grant of salaries during their suspension despite
the fact that they were meted out reprimand, this Court stated:

With respect to petitioner Rodolfo Mariano, payment of his

backwages is in order. A reading of the resolution of the Civil
Service Commission will show that he was exonerated of the
charges which formed the basis for his suspension. The Secretary
of the DECS charged him with and he was later found guilty of
grave misconduct, gross neglect of duty, gross violation of the
Civil Service Law, rules and regulations and reasonable office
regulations, refusal to perform official duty, gross insubordination,
conduct prejudicial to the best interest of the service, and
absence without official leave, for his participation in the mass
actions on September 18, 20 and 21, 1990. It was his alleged
participation in the mass actions that was the basis of his
preventive suspension and, later, his dismissal from the service.

However, the Civil Service Commission, in the questioned

resolution, made a finding that Mariano was involved in the "mass
actions" but was absent because he was in Ilocos Sur to attend
the wake and interment of his grandmother. Although the CSC
imposed upon him the penalty of reprimand, the same was for his
violation of reasonable office rules and regulations because he
failed to inform the school of his intended absence and neither did
he file an application for leave covering such absences.

Under Section 23 of the Rule Implementing Book V of Executive

Order No. 292 and other pertinent civil service laws, in violations
of reasonable office rules and regulations, the first offense is
punishable by reprimand. To deny petitioner Mariano his back
wages during his suspension would be tantamount to punishing
 251

him after his exoneration from the charges which caused his
dismissal from the service. 26

In Jacinto v. Court of Appeals, 27 a public school who was found guilty of

violation of reasonable office rules and regulations for having been absent
without leave and reprimanded was given back salaries after she was
exonerated of the charge of having taken part in the strikes.

Petitioner Secretary of Education contends, however, that respondent Abad,

Bandigas, and Somebang signed a letter in which they admitted having
taken part in the mass action. This question cannot be raised now. The Civil
Service Commission gave no weight to this letter in view of individual letters
written by three citing reasons for their absences, to wit: Abad, because he
decided to stay home to correct students papers; Bandigas, because she
had to accompany her brother to the Commission on Immigration, and
Somebang because of "economic reasons." Petitioner did not appeal from
this ruling. Hence, he is bound by the fanctual findings of the CSC and the
appellate court.

WHEREFORE, the decision, dated September 3, 1996, as amended by the

resolutions, dated July 15, 1997 and October 6, 1997, of the Court of
Appeals, is hereby AFFIRMED with the MODIFICATION that the award of
salaries to private respondents shall be computed from the time of their
dismissal/suspension by the Department of Education, Culture, and Sports
until their actual reinstatement, for a period not exceeding five years.

SO ORDERED.

Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima and Gonzaga-

Reyes, JJ., concur.

Davide, Jr., C.J., in the result and subject to its modification expressed in its
separate opinion of Mr. Justice Panganiban.

Melo, J., in the result.

Panganiban, J., please see separate opinion.

Puno, Pardo, Buena, Ynares-Santiago, JJ., we joined the separate opinion

of Justice Panganiban.

Separate Opinions
 252

PANGANIBAN, J., separate opinion;

I concur with the ponencia insofar as it denies the petition and affirms the

Court of Appeals Decision and Resolutions finding private respondents
guilty only of violation of office rules and regulations, meting upon them the
penalty of reprimand and reinstating them in the civil service.

I beg to disagree, however, insofar as it deprives private respondents their

back salaries corresponding to the entire period of their preventive
suspension.

Private Respondents Liable

for Violation of Reasonable

Office Rules and Regulations

Like the majority, I do not find any reversible error or abuse of discretion in
the factual finding of the Court of Appeals that private respondents did not
actually participate in the September 1991 mass actions staged in violation
of law by various public schoolteachers. They were, however, found to have
absented themselves from their classes without filing an application for
leave of absence. For this lapse, they indeed deserve a reprimand, pursuant
to Section 23, Rule XIV (Discipline) of the Rules Implementing the Civil
Service Law, as well as existing jurisprudence which I shall cite later.

Private Respondents Entitled

to Back Salaries Without

Qualification or Deduction

Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension

for civil service employees charged with offenses punishable with removal
or suspension: "(1) preventive suspension pending investigation (§51) and
(2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal but, after review, the
respondent is exonerated (§47(4)). 1

Accordingly, the esteemed justice makes a distinction in the grant of back

salaries. In the first instance, he says, the suspended employees (pending
investigation) are NOT entitled to back pay, regardless of whether they are
eventually exonerated from the charges for which they were investigated.
However, if and when they are exonerated after appeal, they may be
granted back salaries, but only those corresponding to the appeal or review
period until actual reinstatement, and not exceeding five years.
 253

This stance being adopted by the majority reverses several unanimous en

banc decisions, in which this Court ordered payment of back salaries
without qualification or deduction. In Miranda v. Commission on
Audit, 2 noting that the applicable law mandated that preventive suspension
should not be longer than 90 days, deemed Miranda's suspension for
almost eight (8) years unreasonable and unjustified. It thus resolved that he
was entitled to back wages for the period of his suspension not exceeding
five (5) years, consistent with existing jurisprudence. 3

In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner

Mariano "be given back wages without deduction or qualification from the
time he was suspended until his actual reinstatement which, under
prevailing jurisprudence, should not exceed five years." The Court ruled: "To
deny petitioner Mariano his back wages during his suspension would be
tantamount to punishing him after his exoneration from the charges which
[had] caused his dismissal from the service." 5

The same rationale was given in Jacinto v. Court of Appeals, 6 in which we

also granted Petitioner Jacinto "back wages, without deduction or
qualification, from the time she was suspended until her actual
reinstatement, the total of which, under prevailing jurisprudence, should not
exceed five years."

In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner,

several years after he had been summarily dismissed from the government
service purportedly for dishonesty, was granted executive clemency "not
because of lack of sufficient proof of his commission of the offense
but . . ., more importantly, he did not commit the offense charged," the Court
found it "fair and just to award petitioner full back wages from 1 April 1975
when he was illegally dismissed, to 12 March 1984 when he was reinstated,
. . . without deduction or qualification." Empathizing with petitioner, the Court
held: 8

. . . Verily, law equity and justice dictate that petitioner be afforded

compassion for the embarrassment, humiliation and, above all,
injustice caused to him and his family by his unfounded dismissal.
This Court cannot help surmising the painful stigma that must
have caused petitioner, the incursion on his dignity and
reputation, for having been adjudged, albeit wrongfully, a
dishonest man . . .

Indeed, where the suspension of civil servants has, from the very beginning,
no reason other than to ensure an unhampered investigation, there is no
justification for withholding their salaries, whether immediately upon
investigation or after appeal or petition for review, much less after their
exoneration. They need not even be found fully innocent of any
 254

misdemeanor, as the public school-teachers concerned

in Bangalisan and Jacinto who were actually found to have violated
reasonable office rules and regulations. Such administrative offense,
however, is punishable with reprimand only, not suspension or dismissal.
Hence, they were granted their back salaries for the period of their
suspension, because they had not committed any grave act warranting their
suspension.

The rationale for the grant of back salaries to suspended public servants is
their exoneration from the charges leveled against them that were
punishable with either dismissal or suspension. Needless to say, only when
the charges carry either of these extreme administrative penalties may they
be preventively suspended pending investigation. If, after investigation, they
are found to be innocent or culpable of lesser offenses not punishable with
suspension or dismissal, they must be immediately reinstated AND granted
full back salaries corresponding to the period of their suspension. In the first
place, if they have been found to be not guilty of any offense warranting
even just a suspension, there is no justifiable reason to deprive them of
work and of income therefor. In these cases, their preventive suspension
must be deemed unjustified.

The majority admits that preventive suspension pending investigation is not

a penalty, but is only a means of enabling the disciplining authority to
conduct an unhampered investigation. 9 Not being a penalty, there is
therefore NO reason to deny employees their salaries for such period,
especially after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an exonerated
employee's pay for such period would in fact transform the nature of
preventive suspension into a penalty — a penalty which is unauthorized by
law, in contravention of the fundamental right of every individual to due
process, and therefore unconstitutional.

The "no-work-no-pay" principle should not be applied in these cases. We

must consider that, ordinarily, suspended employees are willing to work, but
they do not have a choice. Because of some serious charges leveled
against them, they are not allowed to report for work. Investigations may
take up to ninety (90) days or three (3) months. In the meantime, they do
not receive their salaries and other benefits. And yet, the charges against
them may have been baseless or aggravated without good reason, in which
case their suspensions are unjustified ab initio. In these instances, I repeat,
it is but right to grant them full back pays.

Admittedly, the purpose behind preventive suspensions pending

investigation is noble. It is intended to enable the disciplining authorities or
the investigating officials to probe the charges against respondents by
preventing the latter from intimidating or in any was influencing witnesses
 255

against them. 10 But, I submit, it would be totally unfair to respondents who

are undeserving of the penalty of suspension or dismissal to be deprived of
their salaries for such period. To repeat, they cannot be faulted for not
rendering any work during the period of preventive suspension, because
that is merely what the law mandates.

Significantly, the Civil Service Law does not state that exonerated
employees are not entitled to back salaries corresponding to the preventive
suspension period. Such silence of the law should not ipso facto be
interpreted as a denial of the right, pursuant to rules on statutory
construction. In any event, the rules on the interpretation of laws are mere
tools used to ascertain legislative intent. 11 They are not necessarily
applicable at all times, particularly when the intention to change the
meaning of the previous law is not clear. In the case of the present Civil
Service Law, which is found in Executive Order No. 292 issued by then
President Corazon Aquino in the exercise of her legislative powers under
the Freedom Constitution, its legislative purpose cannot be clearly
established, because it has no recorded deliberations from which to verify
such intent. Consequently, we should not completely rely on the general
rule on amendment by deletion. 12 We should nor hold the omission of
words in the later statute as necessarily altering the construction of the
earlier one, for we may do so only "where the intent of the legislature to
make such change is clear of construction." 13

In any event, in the absence of an express prohibition on the payment of

back salaries, any doubt should be settled in favor of the employee. As our
fundamental law explicitly mandates, "The State shall afford full protection
to labor . . ." 14 This Court has invariably declared that it will not hesitate to
tilt the scales of justice in favor of the working class, for the Constitution
dictates that "the State . . . shall protect the rights of workers and promote
their welfare." 15 There is no reason not to apply this principle in favor of civil
service employees as well, for they are very much part of the working class.
And the government as their employer should set the example in upholding
the constitutional mandate to safeguard their rights and interests.

Needless to say, our Construction stands above all laws; more so, above
any treatise including that of Mechem which the ponencia cites. The
interpretation of general laws on public officers in foreign jurisdictions has
no application in the present case, as our law has no explicit injunction
against the payment of back salaries for preventively suspended
employees. Moreover, the United States Constitution provides no express
mandate, similar to that found in our Constitution, to "afford full protection to
labor" and to "protect the rights of workers and promote their welfare."

The grant of back pay is a matter not merely of compassion and mercy for
employees temporarily suspended from work but, more important, of justice
 256

and equity. The exoneration of the employees proves that there was no
reason at all to suspend them in the first place. To deny them their incomes
on the frivolous ground that the law does not expressly provide for the grant
thereof would provide a tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave administrative
offenses. It plainly opens the door to harassment of public officials and
employees by unjustly depriving them of their meager incomes and
consequently subjecting them and their families to difficult circumstances.

Even in the private sector, the law and the existing jurisprudence grant
employees who are unjustly dismissed from work not only reinstatement
without loss of seniority rights and other privileges, but also full back wages,
inclusive of allowances and other benefits or benefits or their monetary
equivalent, computed from the time their compensation was withheld from
them up to the time they were actually reinstated. 16

Civil Service Law Different

from Ombudsman Act

In this regard, I believe the Civil Service Law should be distinguished from
the Ombudsman Act (RA 6770) which categorically and expressly provides
that the suspended employee who is exonerated after preventive
suspension is entitled to reinstatement, but not back salaries, viz.:

Sec. 24. Preventive suspension. — The Ombudsman or his

Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is

terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis supplied.)

Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were

only reprimanded by the Court for violation of the Ethical Standards Law, no
back pay was awarded.
 257

WHEREFORE, I vote to DENY the petition and to GRANT private

respondents full back salaries, without qualification or deduction, from the
time of suspension, including the period of preventive suspension, until
actual reinstatement.

Separate Opinions

PANGANIBAN, J., separate opinion;

I concur with the ponencia insofar as it denies the petition and affirms the

Court of Appeals Decision and Resolutions finding private respondents
guilty only of violation of office rules and regulations, meting upon them the
penalty of reprimand and reinstating them in the civil service.

I beg to disagree, however, insofar as it deprives private respondents their

back salaries corresponding to the entire period of their preventive
suspension.

Private Respondents Liable

for Violation of Reasonable

Office Rules and Regulations

Like the majority, I do not find any reversible error or abuse of discretion in
the factual finding of the Court of Appeals that private respondents did not
actually participate in the September 1991 mass actions staged in violation
of law by various public schoolteachers. They were, however, found to have
absented themselves from their classes without filing an application for
leave of absence. For this lapse, they indeed deserve a reprimand, pursuant
to Section 23, Rule XIV (Discipline) of the Rules Implementing the Civil
Service Law, as well as existing jurisprudence which I shall cite later.

Private Respondents Entitled

to Back Salaries Without

Qualification or Deduction

Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension

for civil service employees charged with offenses punishable with removal
or suspension: "(1) preventive suspension pending investigation (§51) and
(2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal but, after review, the
respondent is exonerated (§47(4)). 1

Accordingly, the esteemed justice makes a distinction in the grant of back

salaries. In the first instance, he says, the suspended employees (pending
 258

investigation) are NOT entitled to back pay, regardless of whether they are
eventually exonerated from the charges for which they were investigated.
However, if and when they are exonerated after appeal, they may be
granted back salaries, but only those corresponding to the appeal or review
period until actual reinstatement, and not exceeding five years.

This stance being adopted by the majority reverses several unanimous en

banc decisions, in which this Court ordered payment of back salaries
without qualification or deduction. In Miranda v. Commission on
Audit, 2 noting that the applicable law mandated that preventive suspension
should not be longer than 90 days, deemed Miranda's suspension for
almost eight (8) years unreasonable and unjustified. It thus resolved that he
was entitled to back wages for the period of his suspension not exceeding
five (5) years, consistent with existing jurisprudence. 3

In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner

Mariano "be given back wages without deduction or qualification from the
time he was suspended until his actual reinstatement which, under
prevailing jurisprudence, should not exceed five years." The Court ruled: "To
deny petitioner Mariano his back wages during his suspension would be
tantamount to punishing him after his exoneration from the charges which
[had] caused his dismissal from the service." 5

The same rationale was given in Jacinto v. Court of Appeals, 6 in which we

also granted Petitioner Jacinto "back wages, without deduction or
qualification, from the time she was suspended until her actual
reinstatement, the total of which, under prevailing jurisprudence, should not
exceed five years."

In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner,

several years after he had been summarily dismissed from the government
service purportedly for dishonesty, was granted executive clemency "not
because of lack of sufficient proof of his commission of the offense
but . . ., more importantly, he did not commit the offense charged," the Court
found it "fair and just to award petitioner full back wages from 1 April 1975
when he was illegally dismissed, to 12 March 1984 when he was reinstated,
. . . without deduction or qualification." Empathizing with petitioner, the Court
held: 8

. . . Verily, law equity and justice dictate that petitioner be afforded

compassion for the embarrassment, humiliation and, above all,
injustice caused to him and his family by his unfounded dismissal.
This Court cannot help surmising the painful stigma that must
have caused petitioner, the incursion on his dignity and
reputation, for having been adjudged, albeit wrongfully, a
dishonest man . . .
 259

Indeed, where the suspension of civil servants has, from the very beginning,
no reason other than to ensure an unhampered investigation, there is no
justification for withholding their salaries, whether immediately upon
investigation or after appeal or petition for review, much less after their
exoneration. They need not even be found fully innocent of any
misdemeanor, as the public school-teachers concerned
in Bangalisan and Jacinto who were actually found to have violated
reasonable office rules and regulations. Such administrative offense,
however, is punishable with reprimand only, not suspension or dismissal.
Hence, they were granted their back salaries for the period of their
suspension, because they had not committed any grave act warranting their
suspension.

The rationale for the grant of back salaries to suspended public servants is
their exoneration from the charges leveled against them that were
punishable with either dismissal or suspension. Needless to say, only when
the charges carry either of these extreme administrative penalties may they
be preventively suspended pending investigation. If, after investigation, they
are found to be innocent or culpable of lesser offenses not punishable with
suspension or dismissal, they must be immediately reinstated AND granted
full back salaries corresponding to the period of their suspension. In the first
place, if they have been found to be not guilty of any offense warranting
even just a suspension, there is no justifiable reason to deprive them of
work and of income therefor. In these cases, their preventive suspension
must be deemed unjustified.

The majority admits that preventive suspension pending investigation is not

a penalty, but is only a means of enabling the disciplining authority to
conduct an unhampered investigation. 9 Not being a penalty, there is
therefore NO reason to deny employees their salaries for such period,
especially after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an exonerated
employee's pay for such period would in fact transform the nature of
preventive suspension into a penalty — a penalty which is unauthorized by
law, in contravention of the fundamental right of every individual to due
process, and therefore unconstitutional.

The "no-work-no-pay" principle should not be applied in these cases. We

must consider that, ordinarily, suspended employees are willing to work, but
they do not have a choice. Because of some serious charges leveled
against them, they are not allowed to report for work. Investigations may
take up to ninety (90) days or three (3) months. In the meantime, they do
not receive their salaries and other benefits. And yet, the charges against
them may have been baseless or aggravated without good reason, in which
case their suspensions are unjustified ab initio. In these instances, I repeat,
it is but right to grant them full back pays.
 260

Admittedly, the purpose behind preventive suspensions pending

investigation is noble. It is intended to enable the disciplining authorities or
the investigating officials to probe the charges against respondents by
preventing the latter from intimidating or in any was influencing witnesses
against them. 10 But, I submit, it would be totally unfair to respondents who
are undeserving of the penalty of suspension or dismissal to be deprived of
their salaries for such period. To repeat, they cannot be faulted for not
rendering any work during the period of preventive suspension, because
that is merely what the law mandates.

Significantly, the Civil Service Law does not state that exonerated
employees are not entitled to back salaries corresponding to the preventive
suspension period. Such silence of the law should not ipso facto be
interpreted as a denial of the right, pursuant to rules on statutory
construction. In any event, the rules on the interpretation of laws are mere
tools used to ascertain legislative intent. 11 They are not necessarily
applicable at all times, particularly when the intention to change the
meaning of the previous law is not clear. In the case of the present Civil
Service Law, which is found in Executive Order No. 292 issued by then
President Corazon Aquino in the exercise of her legislative powers under
the Freedom Constitution, its legislative purpose cannot be clearly
established, because it has no recorded deliberations from which to verify
such intent. Consequently, we should not completely rely on the general
rule on amendment by deletion. 12 We should nor hold the omission of
words in the later statute as necessarily altering the construction of the
earlier one, for we may do so only "where the intent of the legislature to
make such change is clear of construction." 13

In any event, in the absence of an express prohibition on the payment of

back salaries, any doubt should be settled in favor of the employee. As our
fundamental law explicitly mandates, "The State shall afford full protection
to labor . . ." 14 This Court has invariably declared that it will not hesitate to
tilt the scales of justice in favor of the working class, for the Constitution
dictates that "the State . . . shall protect the rights of workers and promote
their welfare." 15 There is no reason not to apply this principle in favor of civil
service employees as well, for they are very much part of the working class.
And the government as their employer should set the example in upholding
the constitutional mandate to safeguard their rights and interests.

Needless to say, our Construction stands above all laws; more so, above
any treatise including that of Mechem which the ponencia cites. The
interpretation of general laws on public officers in foreign jurisdictions has
no application in the present case, as our law has no explicit injunction
against the payment of back salaries for preventively suspended
employees. Moreover, the United States Constitution provides no express
 261

mandate, similar to that found in our Constitution, to "afford full protection to

labor" and to "protect the rights of workers and promote their welfare."

The grant of back pay is a matter not merely of compassion and mercy for
employees temporarily suspended from work but, more important, of justice
and equity. The exoneration of the employees proves that there was no
reason at all to suspend them in the first place. To deny them their incomes
on the frivolous ground that the law does not expressly provide for the grant
thereof would provide a tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave administrative
offenses. It plainly opens the door to harassment of public officials and
employees by unjustly depriving them of their meager incomes and
consequently subjecting them and their families to difficult circumstances.

Even in the private sector, the law and the existing jurisprudence grant
employees who are unjustly dismissed from work not only reinstatement
without loss of seniority rights and other privileges, but also full back wages,
inclusive of allowances and other benefits or benefits or their monetary
equivalent, computed from the time their compensation was withheld from
them up to the time they were actually reinstated. 16

Civil Service Law Different

from Ombudsman Act

In this regard, I believe the Civil Service Law should be distinguished from
the Ombudsman Act (RA 6770) which categorically and expressly provides
that the suspended employee who is exonerated after preventive
suspension is entitled to reinstatement, but not back salaries, viz.:

Sec. 24. Preventive suspension. — The Ombudsman or his

Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is

terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis supplied.)
 262

Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were

only reprimanded by the Court for violation of the Ethical Standards Law, no
back pay was awarded.

WHEREFORE, I vote to DENY the petition and to GRANT private

respondents full back salaries, without qualification or deduction, from the
time of suspension, including the period of preventive suspension, until
actual reinstatement.

G.R. No. 106692 September 1, 1994

MILA MANALO, petitioner,
vs.
RICARDO GLORIA, in his capacity as the Acting Secretary of Science
and Technology, and PATRICIA STO. TOMAS, in her capacity as the
Chairman of the Civil Service Commission, respondents.

Irineo B. Orlino for petitioner.

DAVIDE, JR., J.:

This is a petition for "certiorari and mandamus" filed on 3 September 1992

urging us to render judgment:

(1) Declaring the 1st Indorsement dated 14

December 1990 of the respondent Secretary
of Science and Technology, (Annex "E"
hereof), and Resolution No. 91-1036 of the
respondent Civil Service Commission (Annex
"G" hereof) null and void;

(2) Ordering the respondent Secretary of

Science and Technology to pay the back
wages of the petitioner for the period from
April 16, 1988, the date she was illegally
dismissed, to June 14, 1989, the date she
was reinstated; and

(3) Ordering the respondent Secretary of

Science and Technology to pay the petitioner
the salary equivalent to the salary of a
Planning Assistant from the time of her
reinstatement and thenceforward. 1
 263

In their comment filed by the Office of the Solicitor General for the
respondents on 2 December 1992, the respondents claim that the petitioner
received a copy of respondent Civil Service Commission's (CSC) Resolution
No. 91-1036 of 29 August 1991 on 5 September 1991 and pray that the
petition be dismissed because, on procedural grounds, it was filed out of
time and the petitioner violated paragraph 4 of Revised Circular No. 1-88
and Circular
No. 28-91; and, on substantive grounds, the decision in G.R. No. 81495 of
4 June 1990 2 cannot apply together since she is not a party therein.
Moreover, her position was legally abolished, she did not appeal from the
abolition, and instead of joining her other co-employees in assailing the
legality of their separation from the service, she requested appointment to a
position comparable to her former position. Thus, she was appointed to the
position of Clerk II on
15 May 1989, which she accepted without reservation.

Indeed, the petitioner failed to comply with the aforesaid Circulars. She does
not also deny that she received a copy of the challenged Resolution
No. 91-1036 on 5 September 1991. Pursuant to Section 7, subdivision A
(Common Provisions), Article IX of the Constitution, 3 the petitioner had only
thirty days from 5 September 1991 within which to bring the said resolution
to this Court via a petition for certiorari under Rule 65 of the Rules of
Court. 4 The instant petition was filed only on 3 September 1992 or eleven
months and twenty-eight days after her receipt of a copy of the challenged
resolution, indisputably beyond the constitutionally mandated period. On this
score alone, the petition must be dismissed.

Even on its merits, the petition must likewise fail. The uncontroverted facts
culled from the pleadings of the parties, as well as from our decision of
4 June 1990 in Mendoza vs. Quisumbing 5 and companion cases, render
this conclusion inevitable.

Before 16 April 1988, the petitioner held the position of planning Assistant in
the Philippine Nuclear Research Institute (PNRI), an agency of the
Department of Science and Technology (DOST), with an annual salary of
P26,250.40.

On 30 January 1987, the President of the Philippines issued E.O.

No. 128 reorganizing the DOST. Section 21 thereof provides for the
reorganization of the Philippine Atomic Energy Commission (PAEC) and the
PNRI. Conformably therewith, PNRI was reorganized and a new staffing
pattern or position structure, which abolished certain positions, was
adopted. A list of employees who would be retained under the new position
structure was posted in the PNRI premises. Those excluded were placed in
a manpower pool for possible placements in other DOST agencies.
 264

Appointments under the new position structure were thereafter issued to the
retained employees.

Among the abolished positions was that of the petitioner. The petitioner,
however, "made an appeal with the DOST/RAB to place her to any
comparable position to which her qualification would fit," 6 which was
favorably acted upon by her appointment to the new position of Clerk II with
an annual salary of P17,640.00 on 15 May 1989. 7 She accepted her
appointment as Clerk II, a position she presently holds.

In view of our Decision of 4 June 1990 in Mendoza vs. Quisumbing and

more particularly of the companion case, G.R. No. 81495 (Arizabal
vs. Leviste), wherein we held:

4) In G.R. No. 81495, the petition is DISMISSED. Except in the

cases of those who have retired or opted to be phased out and
who have received their separation and retirement benefits, the
petitioners are ordered to retain the private respondents-
employees in the reorganized department under the new staffing
pattern with positions and salaries comparable or equivalent to
their former positions but not lower than their former ranks and
salaries.

the petitioner (who was neither a party in G.R. No. 81495 nor in the case
before the Regional Trial Court of Quezon City subject thereof) sent a letter
to the Director of the PNRI, dated 3 September 1990, 8 requesting the
payment of back salaries for the period commencing from the abolition of
her office until she was appointed as Clerk II and the payment of salary
"comparable or equivalent to her former position as Planning Assistant from
the time she was phased out up to the present." The PNRI referred this
request to the DOST on 12 November 1990. 9

In a 1st Indorsement dated 14 December 1990, 10 the DOST denied the

request because she was not a party in G.R. No. 81495 and because there
was no finding under Section 9 of R.A. No. 6656 (Reorganization Law) that
the petitioner was illegally terminated.

On 4 March 1991, the petitioner, through counsel, sent a letter 11 to the

public respondent CSC requesting that in view of the DOST denial of her
request, the CSC should "order the PNRI to pay Ms. Manalo back wages
during the period she was phased out up to her reinstatement to the lower
position of Clerk II, and, in addition that she be paid the difference between
the salary of a Planning Assistant and that of a Clerk II."

In its Resolution No. 91-1036 of 29 August 1991, 12 the CSC denied the

request because the petitioner was not a party in G.R. No. 81495, and
although the position of Clerk II is admittedly lower in rank and salary than
 265

her previous position of Planning Assistant, upon her request after she had
been phased out, she assumed the duties of Clerk II without reservation.

From these facts, it is clear that both the indorsement and the resolution
were not issued with abuse, much less grave, of discretion. The petitioner
was not compelled to accept the new position. Instead of questioning the
new position structure or taking the other alternatives of either accepting
separation pay or retiring from the service, she expressed preference for
appointment to the new position, voluntarily accepted the appointment
thereto, and assumed the new position without reservation. Reluctance or
involuntariness in relation thereto is not asserted in her petition and in her
letters of 3 September 1990 and 4 March 1991.

The mandamus aspect of this case refers to the payment of the petitioner's

(a) "back wages . . . for the period from April 16, 1988, the date she was
illegally dismissed, to June 14, 1989, the date she was reinstated," and
(b) "salary equivalent to the salary of a Planning Assistant from the time of
her reinstatement and thenceforward."

Mandamus under Rule 65 of the Rules of Court is a special civil action

available to an aggrieved party when any tribunal, corporation, board, or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes a person from the use and enjoyment of a right or office
to which that person is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law. The petitioner's claim for
"back wages" could be the appropriate subject of an ordinary civil action and
there is absolutely no showing that the said remedy is not plain, speedy and
adequate. It does not even seem that the petitioner has given some priority
to her claim. She did not claim for it in her
3 September 1990 letter to the PNRI. The first time she mentioned it was in
her 4 March 1991 letter to the CSC. Thereafter, and before she filed this
petition, she did nothing.

As for the payment of salary equivalent to that of a Planning Assistant, it is

clear that the petitioner does not seek reinstatement to the position of
Planning Assistant. Since she had in fact asked for her retention in the PNRI
and for her appointment to a new position and was accordingly appointed as
Clerk II, a position which she voluntarily accepted and which she continues
to hold until now, estoppel, which is clearly present, bars her obtainment of
the desired relief.

We are not persuaded by the suggestion that the petitioner is only seeking
execution of the decision in Arizabal vs. Leviste. The petitioner is not a party
therein and is not, therefore, entitled to its execution.
 266

Nor do we agree with the plea in the dissenting opinion that we take
this case as one for mandamus in the light of our decision in Cristobal
vs. Melchor. 13 The factual milieu therein does not obtain in this case. Unlike
Cristobal who was never reinstated despite his persistent pleas, the herein
petitioner asked for and was appointed to the new position of Clerk II, which
she accepted without reservation. In Cristobal, this Court considered the
viability of an action for mandamus and the grant of favorable relief
thereunder even if the said action was filed after one year from the accrual
of the cause of action, because it was the "act of the government through its
responsible officials more particularly then Executive Secretary Amelito
Mutuc and his successors which contributed to the alleged delay in the filing
of Cristobal's . . . complaint for reinstatement." 14 It appeared therein that
Cristobal and the other dismissed employees were assured by Executive
Secretary Mutuc that he would work for their reinstatement; however, Mr.
Mutuc was replaced by other Executive Secretaries to whom Cristobal "over
and over again presented his request for reinstatement and who gave the
same assurance that Cristobal would be recalled and re-employed at the
'opportune time.'" This "continued promise of government officials
concerned led Cristobal to bide his time and wait for the Office of the
President to comply with its commitment." 15

Even granting that the petitioner can avail herself of the writ of mandamus,
we find no special or cogent reason to justify acceptance of this petition as
an exception to this Court's policy concerning the hierarchy of courts in
relation to cases where it has concurrent jurisdiction with the Regional Trial
Court and the Court of Appeals. In People vs. Cuaresma, 16 this Court
stated:

A last word. This court's original jurisdiction to issue writs

of certiorari (as well as prohibition, mandamus, quo warranto,
habeas corpus and injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts (formerly Courts of First
Instance), which may issue the writ, enforceable in any part of
their respective regions. It is also shared by this court, and by the
Regional Trial Court, with the Court of Appeals (formerly,
Intermediate Appellate Court), although prior to the effectivity
of Batas Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was restricted by
those "in aid of its appellate jurisdiction." This concurrence of
jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That heirarchy is
determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the
 267

extraordinary writs. A becoming regard for that judicial hierarchy

most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be
filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals. A direct invocation of the Supreme
Court's original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent inordinate
demands upon the Court's time and attention which are better
devoted to those maters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court's docket. Indeed, the
removal of the restriction of the jurisdiction of the Court of Appeals
in this regard, supra — resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently
intended precisely to relieve this Court pro tanto of the burden of
dealing with applications for extraordinary writs which, but for the
expansion of the Appellate Court's corresponding jurisdiction,
would have had to be filed with it." (citations omitted)

And in Defensor-Santiago vs. Vasquez, 17 this Court said:

One final observation. We discern in the proceedings in this case

a propensity on the part of petitioner, and, for that matter, the
same may be said of a number of litigants who initiate recourses
before us, to disregard the hierarchy of courts in our judicial
system by seeking relief directly from this Court despite the fact
that the same is available in the lower courts in the exercise of
their original or concurrent jurisdiction, or is even mandated by
law to be sought therein. This practice must be stopped, not only
because of the imposition upon the precious time of this Court but
also because of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court as the proper forum under
the rules of procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore, reiterate the
judicial policy that this Court will not entertain direct resort to it
unless the redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling circumstances justify
availment of a remedy within and calling for the exercise of our
primary jurisdiction.

WHEREFORE, IN VIEW OF ALL OF THE FOREGOING, judgment is

hereby rendered DISMISSING the instant petition.

No pronouncement as to cots.
 268

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Melo, Quiason,

Puno, and Mendoza, JJ., concur.

Cruz, Bidin, JJ., are on leave.

Separate Opinions

BELLOSILLO, J., concuring:

I concur subject to my ponencia in Aldovino v. Alunan. 1 I will explain.

I agree with the dissent of Mr. Justice Kapunan that the declaration of nullity
of the assailed reorganizations in Arizabal v. Leviste 2 nullified also in effect
the separation of petitioner from the service; hence, theoretically, she could
not be deemed to have been terminated. However, her act of signing up for
another position, albeit lower, within the same office amounted to an
abdication of her right to hold her former position. In other words, despite
her separation, petitioner remained, in legal contemplation, as incumbent
Planning Assistant of DOST. But the effect of her unqualified assumption as
Clerk II is resignation from her former office as she cannot be holding both
offices at the same time.

Significantly, it appears from the statement of facts of the majority opinion

that after the reorganization, petitioner never questioned her removal until
the decision in Arizabal. She seemed contended with what fate befell her.
Before then, there was no indication whatsoever that she resented her
separation. She assumed the position of Clerk II without any condition or
qualification; neither did she express interest in her reinstatement as
Planning Assistant. Her actuation is indicum that she "opted to be phased
out," to use the language of Arizabal. Consequently, she is not entitled to
reinstatement to her former position.

Her situation is far different from that of most petitioners and intervenors
in Aldovino who, from the start of their separation, unceasingly fought for
their positions and demanding reinstatement, although in different fora —
some administratively, others judicially and extra-judicially. The ruling
in Cristobal v. Melchor 3 cannot save her as it should only be applied
 269

sparingly and only in extreme cases of injustice. Her case is not one of
them. She does not appear to be a victim of injustice.

I also vote for the denial of the petition.

KAPUNAN, J., dissenting:

Arizabal vs. Leviste and the consolidated cases involving the reorganization

of various government departments and agencies, emphatically held:

We are constrained to set aside the reorganization 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 governing reorganizations. 1

In dismissing the petition of the Secretary of the Department of Science and

Technology (DOST) and the Director and members of the Reorganization
Evaluation Committee of the Philippine Nuclear Research Institute seeking
annulment of the orders of the Regional Trial Court of Quezon City
restraining them from dismissing various employees of the PNRI under
Executive Order No. 128, we ordered the petitioners therein to retain the
said employees under the new staffing pattern with
positions comparable or equivalent to their former ranks and salaries.
Specifically, we ruled that:

4) In G.R. No. 81495, the petition is DISMISSED. Except in the

cases of those who have retired or opted to be phased out and
who have received their separation and retirement benefits, the
petitioners are ordered to retain the private respondents-
employees in the reorganized department under the new staffing
pattern with positions and salaries comparable or equivalent to
their former positions but not lower than their former ranks and
salaries. 2

The clear import of our decisions in these consolidated cases was

that without exception 1) all the reorganizations embodied in the
consolidated cases were set aside, and; 2) in cases where it was plainly
impossible and impracticable to comply with our holding in Mendoza, we
allowed a modification of our holding, provided those affected were restored
to positions of similar rank and salary, if said employees did not opt for
retirement or separation. Even assuming that petitioner allowed to have her
name placed in a manpower pool for purposes of being assigned to another
job, consistent with this Court's holding in Arizabal vs. Leviste, equity
 270

demands that she should have been automatically reassigned to a position

both of comparable rank and salary.

A lot has been said about the fact that herein petitioner was not among the
original private respondents in G.R. No. 81495. Considering our decision
in Arizabal and the subsequent case, De Guzman v. CSC, infra, her failure
to join the petitioners in Arizabal was not fatal to her petition for
reinstatement and back salaries. In Cristobal vs. Melchor 3 where the
doctrine of laches was invoked to defeat the petitioner's demand for
reinstatement to his former position with the Office of the President, this
Court held the statute of limitations (provided for in Section 16, Rule 66, of
the Rules of Court) inapplicable because there was no acquiescence or
inaction on the part of Cristobal which would amount to an abandonment of
his right to reinstatement. Addressing the contention that he was not one of
the parties to the civil case and could not benefit from the lower court's
decision in the said civil case, we held that:

Cristobal was not one of the plaintiffs in the civil case, it is true,
but his non-participation is not fatal to his cause of
action (Emphasis ours). During the pendency of the civil case
Cristobal continued to press his request for reinstatement
together with the other employees who had filed the complaint
and was in fact promised reinstatement as will be shown more in
detail later.

More importantly, Cristobal could be expected — without

necessarily spending time and money by going to court — to rely
upon the outcome of the case filed by his co-employees to protect
his interests considering the similarity of his situation to that of the
plaintiffs therein and the identical relief being sought. On this
point, we find a statement of Justice Louis Brandeis of the United
States Supreme Court in Southern Pacific vs. Bogert, relevant
and persuasive, and We quote:

The essence of laches is not merely lapse of time. It is

essential that there be also acquiescence in the alleged
wrong or lack of diligence in seeking a remedy. Here
plaintiffs, of others representing them, protested . . .
and ever since they have . . . persisted in the diligent
pursuit of a remedy . . . . Where the cause of action is
of such a nature that a suit to enforce it would be
brought on behalf, not only of the plaintiff, but of all
persons similarly situated, it is not essential that each
such persons should intervened (sic) in the suit brought
in order that he be deemed thereafter free from the
laches which bars those who sleep on their rights. (250
 271

U.S. 483, 39 S. Ct. 536, 63 L. Ed. 1099, 1106-1107;

Emphasis supplied. See also Overfield vs. Pennroad
Corporation, et al. 42 Fed. Supp. 586, 613). 4

Significantly, in Cristobal, the plaintiff filed his complaint for reinstatement on

August 10, 1971 or more than nine (9) years after his services as private
secretary in the President's Private Office were terminated.

The similarity in the circumstances of the petitioner and the private

respondents in Arizabal and our ruling in Cristobal militates against public
respondents' assertion that petitioner herein could not benefit from our
decision in the former case. Furthermore, we did not limit our holding in
the Mendoza and Arizabal cases only to the petitioners therein. The
decision was obviously broad enough to include all of those employees
affected by the reorganizations we set aside in those consolidated
cases such that 1) reinstatement should have been automatic, and; 2) it was
not essential that petitioner should have intervened in Arizabal or joined the
other PNRI employees in assailing the legality of their separation, for her to
benefit from our holding.

Petitioner's demotion to a mere Clerk II position with a salary of P17,640.00

from that of Planning Assistant II with compensation of P26,250.00 and the
respondents' failure to rectify this situation were clearly in blatant
contravention of both the letter and spirit of our orders
in Mendoza and Arizabal.

With due respect, I cannot simply reconcile myself with the majority's
rationalization that petitioner was not compelled to accept the new position,
that instead of questioning the new position structure or taking the
alternative of separation or retirement, she expressed preference for the
new position and voluntarily accepted appointment thereto. On April 16,
1988 petitioner was removed from her earlier job as a result of the PNRI
reorganization. She was unemployed for fourteen months. On June 15,
1989, she accepted a Clerk II position with a salary considerably less than
the one which was abolished as result of the new staffing structure. From
these circumstances, one can hardly assume that she accepted the
unconscionable demotion "voluntarily." She did not have must choice. It was
an option between the degradation of having to accept a lowly position with
a salary reduced by more than one third and the pangs of hunger out of
joblessness, at a time when heads of government departments and
agencies were engaged in their orgy of throwing out from office hordes of
government workers in the guise of reorganization, running roughshod on
their rights of due process and security of tenure. In her unfortunate plight,
petitioner, like the dismissed clerk in Cristobal who did not have the luxury,
time and money to go to court to protect his rights, must also have relied on
 272

the outcome of the case filed by her co-employees, given the similarity of
her situation to that of theirs.

As I see it, the majority opinion assumes that this case merely involves the
validity of final orders of the Civil Service Commission on the separation,
removal or termination of a public officer. I beg to disagree. The issue
brought before us affects the extent to which DOST has complied with our
decision (in Mendoza) setting aside the reorganizations involving these
government agencies and our holding (in Arizabal) directing petitioners in
G.R. No. 81495 to reinstate their employees to positions of similar rank and
salary. Such being the case, it would be inappropriate, in my mind, to
misdirect our attention to petitioner's failure to comply with procedural steps
relating to the CSC's order, rather than on the results of the abolition of the
office itself. That would be mistaking the trees for the forest.

There is no disagreement on the proposition that a valid abolition of an

office is neither a separation nor a removal. Where, however, the abolition is
void, the incumbent is deemed never to have ceased to hold
office. 5 In Cruz vs. Primicias6 where the validity of the reorganization of
provincial departments in the Province of Pangasinan was assailed by
government employees terminated as a result of abolition of their offices,
the Court, said:

No removal or separation of petitioners from service is here

involved, but the validity of the abolition of their offices. This is a
legal question that is for the Courts to decide. It is a well-known
rule also that
a valid abolition of offices is neither removal or separation of the
incumbents. And of course, if the abolition is void the incumbent
is deemed never to have ceased to hold office.

xxx xxx xxx

As well settled is the rule that the abolition of an office does not
amount to an illegal removal of its incumbent is the principle that,
in order to be valid, the abolition must be made in good faith.
Where the abolition is made in bad faith, for political and personal
reasons, or in order to circumbent the constitutional security of
tenure of civil service employees, it is null and void. 7

One of the points raised by the respondents in Primicias to defeat the

petitioners' challenge against the validity of the abolition of their offices was
precisely a procedural point: their failure to exhaust administrative remedies.
In laying the question to rest, the Court emphasized that the petitioners
therein never actually ceased to hold office if the abolition was null and void.
 273

Being null and void, their failure to exhaust available administrative

remedies was clearly beside the point.

As recently as March 11, 1994 in De Guzman vs. Civil Service

Commission 8 where we clearly reiterated the fact that "we nullified the
reorganization of respondents DOST and PNRI," 9 in Arizabal vs. Leviste,
we held, citing Arizabal, that:

An abolition which is not bona fide but is merely a device to

circumvent the constitutional security of tenure of the civil service
employees is null and void. 10

In the case at bench, therefore, the effect of our decision in the above-cited
consolidated cases and in De Guzman was to bring back those employees
adversely affected by these reorganizations as far as practicable to
the status quo on the day their positions were abolished. Consequently, as
petitioner is deemed never to have ceased to hold office, it follows that the
appealed decisions of the DOST and the Civil Service Commission have no
practical force and effect, to begin with. By operation of law, she was
entitled to all the rights and privileges which accrued to her by virtue of the
office she held. Her failure to appeal the respondent Commission's decision
within the thirty-day period required by the Constitution was, therefore,
immaterial because in the eyes of the law, her entitlement to the position of
Planning Assistant (or to an equivalent one) and to the emoluments and
privileges attached to the same had never actually ceased. From a practical
point of view, her initial request for reinstatement to the position of Planning
Assistant II, was in effect a request for compliance with our earlier orders in
the Mendoza and Arizabal cases. The DOST's refusal to comply with the
said orders, its failure to restore petitioner to the status quo, and the CSC's
Resolution of 29 August 1991 were therefore made in excess of
respondent's jurisdiction. Compliance with our decision ordering the public
officials concerned to restore employees affected by the reorganization of
the PNRI to the status quo as far as practicable in Arizabal vs. Leviste was
not discretionary, but made obligatory by our orders in
the Mendoza and Arizabal.

The majority opinion has made much out of the petitioner's failure to comply
with Article IX of the Constitution requiring that such petitions be filed within
thirty days from receipt of the assailed resolutions, and Circular I-88 which
requires a verified statement of material dates in these petitions. As we had
already made a clear and unequivocal pronouncement in Arizabal to restore
the illegally dismissed employees to positions comparable or equivalent to
those they formerly held, "but not lower than their former ranks and salaries"
(except in the cases of those who have retired or opted to be phased out
and who have received their separation and retirement benefits), the only
thing left to do for DOST was to implement or execute the directive.
 274

Petitioner's recourse to CSC from the adverse ruling of DOST was a

superfluity as petitioner could have come to this Court to execute or
implement its final orders. Hence, the prescriptive period mandated by
Article IX of the 1987 Constitution could not have run. Moreover, the
constitutional guarantee of security of tenure mandates that, as in Mendoza
vs. Quisumbing and the Dario vs. Mison 11 cases, we disregard the
procedural roadblocks erected by the public respondent in order to defeat
what is otherwise a valid claim. A much more equitable result would have
followed had we proceeded to treat the case at bench essentially on its own
merits, particularly when we consider that the questioned delay in this case
was even far less than the assailed delays in Dario vs. Mison and in the
earlier case of Cristobal vs. Melchor.

In Dario, which we cited with favor in Mendoza vs. Quisumbing, we stated

that:

The Court disregards the questions raised as to procedure . . .

and other technical objections, for two reasons, "[b]ecause of the
demands of public interest, including the need for stability in the
public service . . . and because of the serious implications of
these cases on the administration of the Philippine civil service
and the rights of public servants. 12

The Constitution, no less, demands a similar treatment of the

procedural roadblocks that stand in the way of petitioner's valid claim.

I vote to grant due course to the petition and to enter judgment as follows:

1. Declaring Resolution No. 91-1036 of respondent Civil Service

Commission as null and void for being issued in grave abuse of
discretion;

2. Ordering respondent Secretary of Science and Technology to

reinstate the petitioner to the position of Planning Assistant, or if
this is not possible, to another position of equivalent rank; and

3. Ordering the Secretary of Science and Technology to pay the

backwages of petitioner for the period from April 16, 1988, the
date she was illegally dismissed, to June 14, 1989, the date she
was reinstated.

 
# Separate Opinions

BELLOSILLO, J., concurring:
 275

I concur subject to my ponencia in Aldovino v. Alunan. 1 I will explain.

I agree with the dissent of Mr. Justice Kapunan that the declaration of nullity
of the assailed reorganizations in Arizabal v. Leviste 2 nullified also in effect
the separation of petitioner from the service; hence, theoretically, she could
not be deemed to have been terminated. However, her act of signing up for
another position, albeit lower, within the same office amounted to an
abdication of her right to hold her former position. In other words, despite
her separation, petitioner remained, in legal contemplation, as incumbent
Planning Assistant of DOST. But the effect of her unqualified assumption as
Clerk II is resignation from her former office as she cannot be holding both
offices at the same time.

Significantly, it appears from the statement of facts of the majority opinion

that after the reorganization, petitioner never questioned her removal until
the decision in Arizabal. She seemed contended with what fate befell her.
Before then, there was no indication whatsoever that she resented her
separation. She assumed the position of Clerk II without any condition or
qualification; neither did she express interest in her reinstatement as
Planning Assistant. Her actuation is indicum that she "opted to be phased
out," to use the language of Arizabal. Consequently, she is not entitled to
reinstatement to her former position.

Her situation is far different from that of most petitioners and intervenors
in Aldovino who, from the start of their separation, unceasingly fought for
their positions and demanding reinstatement, although in different fora —
some administratively, others judicially and extra-judicially. The ruling
in Cristobal v. Melchor 3 cannot save her as it should only be applied
sparingly and only in extreme cases of injustice. Her case is not one of
them. She does not appear to be a victim of injustice.

I also vote for the denial of the petition.

KAPUNAN, J., dissenting:

Arizabal vs. Leviste and the consolidated cases involving the reorganization

of various government departments and agencies, emphatically held:

We are constrained to set aside the reorganization 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 governing reorganizations. 1
 276

In dismissing the petition of the Secretary of the Department of Science and

Technology (DOST) and the Director and members of the Reorganization
Evaluation Committee of the Philippine Nuclear Research Institute seeking
annulment of the orders of the Regional Trial Court of Quezon City
restraining them from dismissing various employees of the PNRI under
Executive Order No. 128, we ordered the petitioners therein to retain the
said employees under the new staffing pattern with
positions comparable or equivalent to their former ranks and salaries.
Specifically, we ruled that:

4) In G.R. No. 81495, the petition is DISMISSED. Except in the

cases of those who have retired or opted to be phased out and
who have received their separation and retirement benefits, the
petitioners are ordered to retain the private respondents-
employees in the reorganized department under the new staffing
pattern with positions and salaries comparable or equivalent to
their former positions but not lower than their former ranks and
salaries. 2

The clear import of our decisions in these consolidated cases was

that without exception 1) all the reorganizations embodied in the
consolidated cases were set aside, and; 2) in cases where it was plainly
impossible and impracticable to comply with our holding in Mendoza, we
allowed a modification of our holding, provided those affected were restored
to positions of similar rank and salary, if said employees did not opt for
retirement or separation. Even assuming that petitioner allowed to have her
name placed in a manpower pool for purposes of being assigned to another
job, consistent with this Court's holding in Arizabal vs. Leviste, equity
demands that she should have been automatically reassigned to a position
both of comparable rank and salary.

A lot has been said about the fact that herein petitioner was not among the
original private respondents in G.R. No. 81495. Considering our decision
in Arizabal and the subsequent case, De Guzman v. CSC, infra, her failure
to join the petitioners in Arizabal was not fatal to her petition for
reinstatement and back salaries. In Cristobal vs. Melchor 3 where the
doctrine of laches was invoked to defeat the petitioner's demand for
reinstatement to his former position with the Office of the President, this
Court held the statute of limitations (provided for in Section 16, Rule 66, of
the Rules of Court) inapplicable because there was no acquiescence or
inaction on the part of Cristobal which would amount to an abandonment of
his right to reinstatement. Addressing the contention that he was not one of
the parties to the civil case and could not benefit from the lower court's
decision in the said civil case, we held that:
 277

Cristobal was not one of the plaintiffs in the civil case, it is true,
but his non-participation is not fatal to his cause of
action (Emphasis ours). During the pendency of the civil case
Cristobal continued to press his request for reinstatement
together with the other employees who had filed the complaint
and was in fact promised reinstatement as will be shown more in
detail later.

More importantly, Cristobal could be expected — without

necessarily spending time and money by going to court — to rely
upon the outcome of the case filed by his co-employees to protect
his interests considering the similarity of his situation to that of the
plaintiffs therein and the identical relief being sought. On this
point, we find a statement of Justice Louis Brandeis of the United
States Supreme Court in Southern Pacific vs. Bogert, relevant
and persuasive, and We quote:

The essence of laches is not merely lapse of time. It is

essential that there be also acquiescence in the alleged
wrong or lack of diligence in seeking a remedy. Here
plaintiffs, of others representing them, protested . . .
and ever since they have . . . persisted in the diligent
pursuit of a remedy . . . . Where the cause of action is
of such a nature that a suit to enforce it would be
brought on behalf, not only of the plaintiff, but of all
persons similarly situated, it is not essential that each
such persons should intervened (sic) in the suit brought
in order that he be deemed thereafter free from the
laches which bars those who sleep on their rights. (250
U.S. 483, 39 S. Ct. 536, 63 L. Ed. 1099, 1106-1107;
Emphasis supplied. See also Overfield vs. Pennroad
Corporation, et al. 42 Fed. Supp. 586, 613). 4

Significantly, in Cristobal, the plaintiff filed his complaint for reinstatement on

August 10, 1971 or more than nine (9) years after his services as private
secretary in the President's Private Office were terminated.

The similarity in the circumstances of the petitioner and the private

respondents in Arizabal and our ruling in Cristobal militates against public
respondents' assertion that petitioner herein could not benefit from our
decision in the former case. Furthermore, we did not limit our holding in
the Mendoza and Arizabal cases only to the petitioners therein. The
decision was obviously broad enough to include all of those employees
affected by the reorganizations we set aside in those consolidated
cases such that 1) reinstatement should have been automatic, and; 2) it was
not essential that petitioner should have intervened in Arizabal or joined the
 278

other PNRI employees in assailing the legality of their separation, for her to
benefit from our holding.

Petitioner's demotion to a mere Clerk II position with a salary of P17,640.00

from that of Planning Assistant II with compensation of P26,250.00 and the
respondents' failure to rectify this situation were clearly in blatant
contravention of both the letter and spirit of our orders
in Mendoza and Arizabal.

With due respect, I cannot simply reconcile myself with the majority's
rationalization that petitioner was not compelled to accept the new position,
that instead of questioning the new position structure or taking the
alternative of separation or retirement, she expressed preference for the
new position and voluntarily accepted appointment thereto. On April 16,
1988 petitioner was removed from her earlier job as a result of the PNRI
reorganization. She was unemployed for fourteen months. On June 15,
1989, she accepted a Clerk II position with a salary considerably less than
the one which was abolished as result of the new staffing structure. From
these circumstances, one can hardly assume that she accepted the
unconscionable demotion "voluntarily." She did not have must choice. It was
an option between the degradation of having to accept a lowly position with
a salary reduced by more than one third and the pangs of hunger out of
joblessness, at a time when heads of government departments and
agencies were engaged in their orgy of throwing out from office hordes of
government workers in the guise of reorganization, running roughshod on
their rights of due process and security of tenure. In her unfortunate plight,
petitioner, like the dismissed clerk in Cristobal who did not have the luxury,
time and money to go to court to protect his rights, must also have relied on
the outcome of the case filed by her co-employees, given the similarity of
her situation to that of theirs.

As I see it, the majority opinion assumes that this case merely involves the
validity of final orders of the Civil Service Commission on the separation,
removal or termination of a public officer. I beg to disagree. The issue
brought before us affects the extent to which DOST has complied with our
decision (in Mendoza) setting aside the reorganizations involving these
government agencies and our holding (in Arizabal) directing petitioners in
G.R. No. 81495 to reinstate their employees to positions of similar rank and
salary. Such being the case, it would be inappropriate, in my mind, to
misdirect our attention to petitioner's failure to comply with procedural steps
relating to the CSC's order, rather than on the results of the abolition of the
office itself. That would be mistaking the trees for the forest.

There is no disagreement on the proposition that a valid abolition of an

office is neither a separation nor a removal. Where, however, the abolition is
void, the incumbent is deemed never to have ceased to hold
 279

office. 5 In Cruz vs. Primicias6 where the validity of the reorganization of

provincial departments in the Province of Pangasinan was assailed by
government employees terminated as a result of abolition of their offices,
the Court, said:

No removal or separation of petitioners from service is here

involved, but the validity of the abolition of their offices. This is a
legal question that is for the Courts to decide. It is a well-known
rule also that
a valid abolition of offices is neither removal or separation of the
incumbents. And of course, if the abolition is void the incumbent
is deemed never to have ceased to hold office.

xxx xxx xxx

As well settled is the rule that the abolition of an office does not
amount to an illegal removal of its incumbent is the principle that,
in order to be valid, the abolition must be made in good faith.
Where the abolition is made in bad faith, for political and personal
reasons, or in order to circumbent the constitutional security of
tenure of civil service employees, it is null and void. 7

One of the points raised by the respondents in Primicias to defeat the

petitioners' challenge against the validity of the abolition of their offices was
precisely a procedural point: their failure to exhaust administrative remedies.
In laying the question to rest, the Court emphasized that the petitioners
therein never actually ceased to hold office if the abolition was null and void.
Being null and void, their failure to exhaust available administrative
remedies was clearly beside the point.

As recently as March 11, 1994 in De Guzman vs. Civil Service

Commission 8 where we clearly reiterated the fact that "we nullified the
reorganization of respondents DOST and PNRI," 9 in Arizabal vs. Leviste,
we held, citing Arizabal, that:

An abolition which is not bona fide but is merely a device to

circumvent the constitutional security of tenure of the civil service
employees is null and void. 10

In the case at bench, therefore, the effect of our decision in the above-cited
consolidated cases and in De Guzman was to bring back those employees
adversely affected by these reorganizations as far as practicable to
the status quo on the day their positions were abolished. Consequently, as
petitioner is deemed never to have ceased to hold office, it follows that the
appealed decisions of the DOST and the Civil Service Commission have no
practical force and effect, to begin with. By operation of law, she was
entitled to all the rights and privileges which accrued to her by virtue of the
 280

office she held. Her failure to appeal the respondent Commission's decision
within the thirty-day period required by the Constitution was, therefore,
immaterial because in the eyes of the law, her entitlement to the position of
Planning Assistant (or to an equivalent one) and to the emoluments and
privileges attached to the same had never actually ceased. From a practical
point of view, her initial request for reinstatement to the position of Planning
Assistant II, was in effect a request for compliance with our earlier orders in
the Mendoza and Arizabal cases. The DOST's refusal to comply with the
said orders, its failure to restore petitioner to the status quo, and the CSC's
Resolution of 29 August 1991 were therefore made in excess of
respondent's jurisdiction. Compliance with our decision ordering the public
officials concerned to restore employees affected by the reorganization of
the PNRI to the status quo as far as practicable in Arizabal vs. Leviste was
not discretionary, but made obligatory by our orders in
the Mendoza and Arizabal.

The majority opinion has made much out of the petitioner's failure to comply
with Article IX of the Constitution requiring that such petitions be filed within
thirty days from receipt of the assailed resolutions, and Circular I-88 which
requires a verified statement of material dates in these petitions. As we had
already made a clear and unequivocal pronouncement in Arizabal to restore
the illegally dismissed employees to positions comparable or equivalent to
those they formerly held, "but not lower than their former ranks and salaries"
(except in the cases of those who have retired or opted to be phased out
and who have received their separation and retirement benefits), the only
thing left to do for DOST was to implement or execute the directive.
Petitioner's recourse to CSC from the adverse ruling of DOST was a
superfluity as petitioner could have come to this Court to execute or
implement its final orders. Hence, the prescriptive period mandated by
Article IX of the 1987 Constitution could not have run. Moreover, the
constitutional guarantee of security of tenure mandates that, as in Mendoza
vs. Quisumbing and the Dario vs. Mison 11 cases, we disregard the
procedural roadblocks erected by the public respondent in order to defeat
what is otherwise a valid claim. A much more equitable result would have
followed had we proceeded to treat the case at bench essentially on its own
merits, particularly when we consider that the questioned delay in this case
was even far less than the assailed delays in Dario vs. Mison and in the
earlier case of Cristobal vs. Melchor.

In Dario, which we cited with favor in Mendoza vs. Quisumbing, we stated

that:

The Court disregards the questions raised as to procedure . . .

and other technical objections, for two reasons, "[b]ecause of the
demands of public interest, including the need for stability in the
public service . . . and because of the serious implications of
 281

these cases on the administration of the Philippine civil service

and the rights of public servants. 12

The Constitution, no less, demands a similar treatment of the

procedural roadblocks that stand in the way of petitioner's valid claim.

I vote to grant due course to the petition and to enter judgment as follows:

1. Declaring Resolution No. 91-1036 of respondent Civil Service

Commission as null and void for being issued in grave abuse of
discretion;

2. Ordering respondent Secretary of Science and Technology to

reinstate the petitioner to the position of Planning Assistant, or if
this is not possible, to another position of equivalent rank; and

3. Ordering the Secretary of Science and Technology to pay the

backwages of petitioner for the period from April 16, 1988, the
date she was illegally dismissed, to June 14, 1989, the date she
was reinstated.

G.R. No. 156039               August 14, 2003

HON. KARINA CONSTANTINO-DAVID, HON. JOSE F. ERESTAIN, JR.,

and HON. WALDEMAR V. VALMORES, in their capacities as Chairman
and Commissioners, respectively, of the CIVIL SERVICE
COMMISSION, petitioners,
vs.
ZENAIDA D. PANGANDAMAN-GANIA, respondent.

DECISION

BELLOSILLO, J.:

"A system of procedure is perverted from its proper function when it

multiplies impediments to justice without the warrant of clear necessity," so
says Cardozo - an observation especially apt in the instant case involving
the payment of back wages and other benefits resulting from the illegal
dismissal of an employee due to improper personnel and non-disciplinary
action. The disquieting procedural steps risked by respondent before the
Court of Appeals, the tendency of the appellate court to overlook most of
them, the doggedness of the Solicitor General to venture others, when
neither the court a quo nor the parties to the case appear perturbed that
elementary rules of procedure were either indulgently brushed aside or
subtly exploited one after the other, do not leave us ensnared in borderline
technical maneuvers, or so it is said, being too impotent to address the pith
of this controversy.
 282

Respondent Zenaida D. Pangandaman-Gania is a Director II and Manila

Information and Liaisoning Officer of the Mindanao State University (MSU).
She has been holding this position after the confirmation of her appointment
by the MSU Board of Regents on 1 June 1995.

On 2 October 1998 respondent received a copy of Special Order No. 477-P

dated 28 September 1998 designating a certain Agnes Mangondato as
Acting Director in her place in view of the alleged expiration of her term and
was no longer allowed to report for work. She verified the status of her
appointment and found out that her appointment was not submitted to the
Civil Service Commission for attestation.

Respondent immediately brought the matter to the CSC for a ruling on the
validity of the termination of her employment.1 In Resolution No. 00-1265
dated 24 May 2000 the CSC upheld her dismissal for lack of attestation and
prolonged absence without official leave from the time she was removed
from her post in September 1998 as a result of Special Order No. 477-P.

Respondent moved for reconsideration. In Resolution No. 01-0558 dated 8

March 2001 the CSC found merit in her motion, declared her removal from
office as illegal, exonerated her from the charge of being on absence
without official leave and ordered her reinstatement as Director II and
Manila Information and Liaisoning Officer of MSU but disallowed the
payment of back salaries for the period she was not working as a result of
the illegal dismissal. The CSC explained the non-payment of her back
wages -

Be that as it may, the incumbency of Dr. Gania is governed by the principle

of "quantum meruit" (as you work so shall you earn). In other words, her
entitlement to compensation depends on her actual performance of work.
Short of approval by the Commission, the appointment while already
effective, by itself is not a basis for payment of salary but the assumption of
duties of her office x x x x Such being the case, Dr. Gania is not entitled to
compensation for the period that she was not reporting to work.2

MSU moved for reconsideration of CSC Resolution No. 01-0558 dated 8

March 2001, while respondent moved for its early execution. In Resolution
No. 01-1225 dated 19 July 2001, the CSC denied MSU’s motion for
reconsideration and ordered its President to allow respondent to assume
and exercise the functions of Manila Information and Liaisoning Officer.

MSU appealed from the denial of its motion for reconsideration under Rule
43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R. No. SP-
66188, to the Court of Appeals, but the appellate court did not issue any
restraining order or injunction to prevent the execution of the resolution on
appeal.
 283

Respondent did not seek a review of any of the resolutions of the CSC
including the order denying back salaries and other benefits for the period
she was out of work. She instead pursued her prayer for reinstatement but
MSU refused to employ her back. Hence, she was compelled to file a
second motion for the execution of CSC Resolution No. 01-0558 dated 8
March 2001, citing Sec. 82 of the Revised Uniform Rules on Administrative
Cases in the Civil Service, which states that "[t]he filing and pendency of
petition for review with the Court of Appeals or certiorari with the Supreme
Court shall not stop the execution of the final decision of the Commission
unless the Court issues a restraining order or an injunction."

In Resolution No. 01-1616 dated 4 October 2001 the CSC granted

respondent’s motion and held that "CSC Resolution No. 01-0558 dated 8
March 2001 has attained finality and must be immediately implemented," as
it again ordered the MSU President to reinstate respondent.

On 8 October 2001 respondent for the first time questioned the portion of
CSC Resolution No. 01-0558 dated 8 March 2001 prohibiting the payment
of back wages and other benefits to her for the period that her employment
was terminated, and moved for the modification of the resolution by granting
her the relief prayed for.

On 29 October 2001 the Court of Appeals dismissed MSU’s petition for

review on the ground that the certificate of non-forum shopping was not
personally signed by pertinent officers of the university but by its counsel of
record.3 MSU moved for reconsideration of the dismissal.

On 12 December 2001, there being still no action on her request to be paid

her back salaries and other benefits, respondent moved for an immediate
ruling thereon.

On 21 February 2002 the Court of Appeals denied MSU’s motion for

reconsideration of the dismissal of its petition for review for lack of merit.

On 28 February 2002 the CSC in Resolution No. 02-0321 denied

respondent’s motion -

Since nowhere in the records does it show that [respondent Gania] actually
assumed and performed the duties of her position, it logically follows that
there can be no basis for the grant of back salaries in her favor.4

Without the aid of an attorney, respondent appealed CSC Resolution No.

02-0321 dated 28 February 2002 to the Court of Appeals under Rule 43 of
the 1997 Rules of Civil Procedure, docketed as CA-G.R. SP No. 69668. In
her petition for review, she did not mention that she did not seek a review of
CSC Resolution No. 01-0558 dated 8 March 2001 which was the real object
of her appeal.5 In addition, she impleaded only the petitioners herein,
 284

Chairperson Karina Constantino-David and Commissioners Jose F. Erestain

Jr. and Waldemar V. Valmores of the CSC, but did not name as party-
respondent the Mindanao State University or any of its officers.

In its Comment before the Court of Appeals, the CSC through the Office of
the Solicitor General (OSG) rebuffed respondent’s claim for back wages
since she allegedly failed to actually assume the position of Director II and
Manila Information and Liaisoning Officer of MSU. But the CSC did not
assail the procedural infirmities of respondent’s petition and appeared
contented to refute just the substantial arguments thereof.

On 28 October 2002 the Court of Appeals partially found merit in

respondent’s petition for review.6 Apparently failing to note that respondent
did not appeal from the denial of her claim for payment of back salaries in
CSC Resolution No. 01-0558 dated 8 March 2001, which she found
objectionable, the Court of Appeals concluded that -

x x x petitioner had assumed and had been exercising the functions [at
MSU] as early as June 1995, after the MSU Board of Regents approved her
permanent appointment which was issued earlier x x x on April 10, 1995. It
was only in September 1998, when she was terminated from service on the
alleged ground of expiration of term, that she was prevented from
performing the functions of her position.7

The Court of Appeals ruled that back wages should be paid to respondent
from the time of her illegal dismissal until she was ordered reinstated by the
CSC as Director II of MSU on 8 March 2001, but excluded the period after
the CSC had ordered MSU to admit respondent back to work since the
damages she suffered for that period were chargeable in the proper forum
against the MSU President who in bad faith refused to abide by the relevant
CSC resolutions.

On 3 January 2003 the OSG filed the instant petition for review under Rule
45, 1997 Rules of Civil Procedure, allegedly in behalf of the petitioners
named herein, and also signed for them the verification and certification of
non-forum shopping. The OSG asserted as grounds for review the principle
recognizing finality to factual findings of quasi-judicial agencies as well as its
puzzling statement that "[w]hile the dismissal of herein respondent was
declared illegal, she was, however, not exonerated from the charges.
Hence, respondent is not entitled to back wages."8 Once again the OSG did
not call attention to procedural defects in the petition of respondent before
the Court of Appeals.

Respondent filed in her own behalf a Comment claiming that the CSC
cannot be a party-petitioner in a case where its decision is the subject of
review, citing Civil Service Commission v. Court of Appeals.9 As to whether
 285

respondent actually assumed the duties of Director II, she referred not only
to the finding of the Court of Appeals that she had assumed office and
worked for MSU as early as June 1995 but also to the voluminous records
of MSU showing that she reported for work until her illegal dismissal in
September 1998.10 She also manifested that she was reinstated to her job
on 18 September 2002 while the proceedings before the Court of Appeals
were ongoing although she was not paid her salary and other benefits. In
another Manifestation before this Court, she affirmed that her salary as well
as RATA and other benefits for the month of September 2002 were paid on
23 April 2003.

We deny the instant petition for review. It is true that respondent had lost the
right to ask for the modification of CSC Resolution No. 01-0558 dated 8
March 2001 and to demand compensation for her back salaries and other
benefits. She did not move for the reconsideration of this resolution within
fifteen (15) days from receipt thereof11 nor did she file a petition for its review
within the same period under Rule 43 of the 1997 Rules of Civil
Procedure.12 To be sure, both the CSC and respondent herself admitted the
finality of the Resolution and acted upon it when she was granted an order
for its execution.

Meanwhile, MSU filed its petition for review with the Court of Appeals (CA-
G.R. No. SP-66188) assailing CSC Resolution No. 01-0558 dated 8 March
2001 and CSC Resolution No. 01-1225 dated 19 July 2001 denying MSU’s
motion for reconsideration.

Ordinarily, under the foregoing circumstances, neither the Civil Service

Commission nor the Court of Appeals has jurisdiction to direct the
substantial amendment of CSC’s relevant resolutions upon the behest of
respondent.13 The principle governing ordinary appeal from the Regional
Trial Court to the Court of Appeals applies suppletorily14 mutatis mutandis -

x x x where all the parties have either thus perfected their appeals by filing
their notices of appeal in due time and the period to file such notice of
appeal has lapsed for those who did not do so, then the trial court loses
jurisdiction over the case as of the filing of the last notice of appeal or the
expiration of the period to do so for all the parties.15

This rule is also articulated in Associated Bank v. Gonong16 where we held

that only after all the parties’ respective periods to appeal shall have lapsed
that the court loses its jurisdiction over the case. What is left as residual
jurisdiction of the Civil Service Commission pertains only to matters for the
protection and preservation of the rights of the parties which do not involve
any matter litigated by the appeal or the immediate execution of its
resolutions under the Revised Uniform Rules on Administrative Cases in the
 286

Civil Service. This is to ensure the orderly disposition of the case at both the
levels of the CSC and the appellate court.17

Nonetheless, we cannot inflexibly dwell on the defect of a belated appeal

and coldly thwart a review of the instant case. For it cannot be denied that
even after acknowledging the finality of Resolution No. 01-0558 dated 8
March 2001, the CSC still entertained the twin motions of respondent on 8
October 2001 and 12 December 2001 to modify the same resolution and
insert therein an order for the payment of back wages. The CSC in fact
promulgated Resolution No. 02-0321 dated 28 February 2002 denying
respondent’s importunate motions for the reason that she allegedly did not
report for work but not because they were already time-barred.

No doubt, the Civil Service Commission was in the legitimate exercise of its
mandate under Sec. 3, Rule I, of the Revised Uniform Rules on
Administrative Cases in the Civil Service that "[a]dministrative investigations
shall be conducted without necessarily adhering strictly to the technical
rules of procedure and evidence applicable to judicial proceedings." This
authority is consistent with its powers and functions to "[p]rescribe, amend
and enforce rules and regulations for carrying into effect the provisions of
the Civil Service Law and other pertinent laws" being the central personnel
agency of the Government.18

Furthermore, there are special circumstances in accordance with the tenets

of justice and fair play that warrant such liberal attitude on the part of the
CSC and a compassionate like-minded discernment by this Court.19 To
begin with, respondent was consistently denied reinstatement by the
responsible officers of MSU and vehemently barred from resuming her
previous position. The first order for her return to work was issued on 8
March 2001 which was followed by repeated personal appeals for the
immediate execution of the CSC resolution.20 Thereafter, when respondent
was still forced out of work, the CSC issued its second and third orders on
19 July 2001 and 4 October 2001, respectively, for the President of MSU to
restore her to the item from which she was illegally dismissed. As these
private requests and official directives were cruelly rejected by her employer
and the period of her unemployment was unduly prolonged, respondent had
no choice and was compelled to ask for back salaries and other benefits to
offset the callous repudiation of what was due her.

To prevent respondent from claiming back wages would leave incomplete

the redress of the illegal dismissal that had been done to her and amount to
endorsing the wrongful refusal of her employer or whoever was accountable
to reinstate her. A too-rigid application of the pertinent provisions of the
Revised Uniform Rules on Administrative Cases in the Civil Service as well
as the Rules of Court will not be given premium where it would obstruct
 287

rather than serve the broader interests of justice in the light of the prevailing
circumstances in the case under consideration.

As commented in Obut v. Court of Appeals,21 "we cannot look with favor on

a course of action which would place the administration of justice in a
straightjacket for then the result would be a poor kind of justice, if there
would be justice at all. Verily, judicial orders x x x are issued to be obeyed,
nonetheless a non-compliance is to be dealt with as the circumstances
attending the case may warrant. What should guide judicial action is the
principle that a party-litigant is to be given the fullest opportunity to establish
the merits of his complaint or defense rather than for him to lose life, liberty,
honor or property on technicalities."

The same principle of liberality may also be drawn upon to gloss over the
failure of respondent to implead MSU as party-respondent in the petition
before the Court of Appeals while joining only herein petitioners as
Chairman and Commissioners of the CSC to answer her petition. While as a
rule it would have been necessary to adhere to this practice,22 in the instant
case no one among the Court of Appeals, the CSC and the Office of the
Solicitor General saw it fit to name or cause to be included MSU as party-
respondent. Indeed, the Comment of the OSG argued on the merits as if it
was acting in unison with respondent’s employer, stressing all possible
claims that may be alleged to defeat respondent’s petition. Ultimately, what
is crucial is that both CSC and MSU are part of the same bureaucracy that
manages and supervises government personnel, and as such, represent a
common interest on the question raised in the petition to be defended by the
same core of lawyers from the OSG or the Office of the Government
Corporate Counsel (OGCC).23

Justifiably, where no injury has been done as probably all lines of reasoning
to oppose the petition have been asserted by parties of the same principal
and brought to the fore in the proceedings a quo, and considering further
that the underlying principle in the administration of justice and application
of the rules is substance rather than form, reasonableness and fair play in
place of formalities, we deem it apposite to except this particular case from
the rigid operation of the procedure for the joinder of parties.

In any event, none of these procedural defects were raised as an issue on

appeal and are now deemed waived. Of course we are not surprised that
the OSG did not touch on these procedural issues and would seemingly
prefer a ruling squarely on the issue of respondent’s entitlement to back
wages. As its services are paid for by taxpayers’ money, the OSG ought to
be the foremost officers of the court who in suitable cases must delve into
the real concerns.
 288

Unfortunately, the OSG also treaded upon technically precarious grounds

when it filed the petition in the name of the CSC and signed the verification
and certificate of non-forum shopping in behalf of its client. Sure enough,
respondent vigorously objects to the standing of the CSC as party-petitioner
in the instant petition, citing our ruling in Civil Service Commission v. Court
of Appeals.24

That the CSC may appeal from an adverse decision of the Court of Appeals
reversing or modifying its resolutions which may seriously prejudice the civil
service system is beyond doubt. In Civil Service Commission v.
Dacoycoy25 this Court held that the CSC may become the party adversely
affected by such ruling and the aggrieved party who may appeal the
decision to this Court.

The situation where the CSC’s participation is beneficial and indispensable

often involves complaints for administrative offenses, such as neglect of
duty, being notoriously undesirable, inefficiency and incompetence in the
performance of official duties, and the like, where the complainant is more
often than not acting merely as a witness for the government which is the
real party injured by the illicit act. In cases of this nature, a ruling of the
Court of Appeals favorable to the respondent employee is understandably
adverse to the government, and unavoidably the CSC as representative of
the government may appeal the decision to this Court to protect the integrity
of the civil service system.

The CSC may also seek a review of the decisions of the Court of Appeals
that are detrimental to its constitutional mandate as the central personnel
agency of the government tasked to establish a career service, adopt
measures to promote morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the civil service, strengthen the merit and
rewards system, integrate all human resources development programs for
all levels and ranks, and institutionalize a management climate conducive to
public accountability. Nonetheless, the right of the CSC to appeal the
adverse decision does not preclude the private complainant in appropriate
cases from similarly elevating the decision for review.26

The ruling in Civil Service Commission v. Dacoycoy was further explained in

Civil Service Commission v. Court of Appeals27 where we held that the real
party-in-interest in a case involving the non-renewal of the appointments of
contractual employees would be the person who was allegedly dismissed
from work and not the CSC, for it is he who would be benefited or injured by
his reinstatement or non-reinstatement and who is present, available and
competent to bring the matter on appeal.1âwphi1 Like a judge whose order
or decision is being assailed, the CSC should not be joined in the petition as
it is not a combatant in a proceeding where opposing parties may contend
their respective positions without the active participation of the CSC.28
 289

In the instant case, the CSC is not the real party-in-interest as this suit
confronts the Decision of the Court of Appeals to award back wages for
respondent arising from an illegitimate personnel and non-disciplinary action
of MSU, which is different from an administrative disciplinary proceeding
where the injured party is the government. We fail to see how the assailed
Decision can impair the effectiveness of government, damage the civil
service system or weaken the constitutional authority of the CSC so as to
authorize the latter to prosecute this case. As a rule, the material interest for
this purpose belongs to MSU since it instigated the illegal dismissal and the
execution of the Decision devolves upon it.29

Regrettably, however, respondent cannot insist that MSU be the

indispensable party in the instant petition since the latter was not designated
as respondent in the petition before the Court of Appeals. It would truly be a
case of having her cake and eating it too for respondent to require MSU to
undertake the present appeal from the assailed Decision when it was
deprived of standing in the appellate court proceedings and unilaterally
booted out as a prospective litigant herein. Hence, by force of
circumstances, the CSC has the standing to initiate the instant petition for
review.

Moreover, the OSG executed the verification and certificate of non-forum

shopping in behalf of the CSC, citing as bases therefor City Warden of the
Manila City Jail v. Estrella,30 and Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc.31 Some clarification is in order to avoid perpetuating
a misconception.

City Warden of the Manila City Jail v. Estrella is not an authority for the OSG
to execute verification and certification of non-forum shopping on its own as
legal representative of client agencies. The reason is that the OSG was in
that case acting as a "People’s Tribune" regardless of the official opinion of
the relevant government agencies therein -

That the City Warden appears to have acquiesced in the release order of
the trial court by his compliance therewith does not preclude the Solicitor
General from taking a contrary position and appealing the same. The
Solicitor General's duty is to present what he considers would legally uphold
the best interest of the Government32 (underscoring added).

Hence, there was no necessity for the verification and certificate of non-
forum shopping to be executed by the City Warden himself. To be sure, it
would have been awkward and irregular for the City Warden to do so given
that his position was not the same as those reflected in the petition of the
OSG. No doubt, the real party-in-interest is the OSG itself as representative
of the State.33 In Pimentel v. Commission on Elections34 we held –
 290

x x x the Solicitor General may, as it has in instances take a position

adverse and contrary to that of the Government on the reasoning that it is
incumbent upon him to present to the court what he considers would legally
uphold the best interest of the government although it may run counter to a
client's position x x x x As we commented on the role of the Solicitor
General in cases pending before this Court, "This Court does not expect the
Solicitor General to waver in the performance of his duty. As a matter of
fact, the Court appreciates the participation of the Solicitor General in many
proceedings and his continued fealty to his assigned task. He should not
therefore desist from appearing before this Court even in those cases he
finds his opinion inconsistent with the Government or any of its agents he is
expected to represent. The Court must be advised of his position just as
well."35

But the rule is different where the OSG is acting as counsel of record for a
government agency. For in such a case it becomes necessary to determine
whether the petitioning government body has authorized the filing of the
petition and is espousing the same stand propounded by the OSG. Verily, it
is not improbable for government agencies to adopt a stand different from
the position of the OSG since they weigh not just legal considerations but
policy repercussions as well. They have their respective mandates for which
they are to be held accountable, and the prerogative to determine whether
further resort to a higher court is desirable and indispensable under the
circumstances.

The verification of a pleading, if signed by the proper officials of the client

agency itself, would fittingly serve the purpose of attesting that the
allegations in the pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good
faith. Of course, the OSG may opt to file its own petition as a "People’s
Tribune" but the representation would not be for a client office but for its
own perceived best interest of the State.

The case of Commissioner of Internal Revenue v. S.C. Johnson and Son,

Inc., is not also a precedent that may be invoked at all times to allow the
OSG to sign the certificate of non-forum shopping in place of the real party-
in-interest. The ruling therein mentions merely that the certification of non-
forum shopping executed by the OSG constitutes substantial compliance
with the rule since "the OSG is the only lawyer for the petitioner, which is a
government agency mandated under Section 35, Chapter 12, Title III, Book
IV, of the 1987 Administrative Code (Reiterated under Memorandum
Circular No. 152 dated May 17, 1992) to be represented only by the Solicitor
General."36

By its very nature, "substantial compliance" is actually inadequate

observance of the requirements of a rule or regulation which are waived
 291

under equitable circumstances37 to facilitate the administration of

justice38 there being no damage or injury caused by such flawed
compliance.39 This concept is expressed in the statement "the rigidity of a
previous doctrine was thus subjected to an inroad under the concept of
substantial compliance."40 In every inquiry on whether to accept "substantial
compliance," the focus is always on the presence of equitable conditions to
administer justice effectively and efficiently without damage or injury to the
spirit of the legal obligation.

We have ruled previously41 that substantial compliance with the certificate of

non-forum shopping is sufficient. The equitable circumstances pleaded to
show substantial compliance include the proximity of the filing of the
complaint to the date of the effectivity of the circular requiring the certificate
and the belated filing thereof, but the mere submission thereof after the filing
of a motion to dismiss does not ipso facto operate as a substantial
compliance.42 As summarized in Bank of the Philippine Islands v. Court of
Appeals,43 "[w]hen a strict and literal application of the rules on non-forum
shopping and verification will result in a patent denial of substantial justice,
they may be liberally construed. This guideline is especially true when the
petitioner has satisfactorily explained the lapse and fulfilled the
requirements in its motion for reconsideration."

The fact that the OSG under the 1987 Administrative Code is the only
lawyer for a government agency wanting to file a petition, or complaint for
that matter, does not operate per se to vest the OSG with the authority to
execute in its name the certificate of non-forum shopping for a client office.
For, in many instances, client agencies of the OSG have legal departments
which at times inadvertently take legal matters requiring court
representation into their own hands without the intervention of the
OSG.44 Consequently, the OSG would have no personal knowledge of the
history of a particular case so as to adequately execute the certificate of
non-forum shopping; and even if the OSG does have the relevant
information, the courts on the other hand would have no way of ascertaining
the accuracy of the OSG’s assertion without precise references in the
record of the case. Thus, unless equitable circumstances which are
manifest from the record of a case prevail, it becomes necessary for the
concerned government agency or its authorized representatives to certify for
non-forum shopping if only to be sure that no other similar case or incident
is pending before any other court.

We recognize the occasions when the OSG has difficulty in securing the
attention and signatures of officials in charge of government offices for the
verification and certificate of non-forum shopping of an initiatory pleading.
This predicament is especially true where the period for filing such pleading
is non-extendible or can no longer be further extended for reasons of public
interest such as in applications for the writ of habeas corpus, in election
 292

cases or where sensitive issues are involved. This quandary is more

pronounced where public officials have stations outside Metro Manila.

But this difficult fact of life within the OSG, equitable as it may seem, does
not excuse it from wantonly executing by itself the verification and certificate
of non-forum shopping.1âwphi1 If the OSG is compelled by circumstances
to verify and certify the pleading in behalf of a client agency, the OSG
should at least endeavor to inform the courts of its reasons for doing so,
beyond instinctively citing City Warden of the Manila City Jail v. Estrella and
Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc.

Henceforth, to be able to verify and certify an initiatory pleading for non-

forum shopping when acting as counsel of record for a client agency, the
OSG must (a) allege under oath the circumstances that make signatures of
the concerned officials impossible to obtain within the period for filing the
initiatory pleading; (b) append to the petition or complaint such authentic
document to prove that the party-petitioner or complainant authorized the
filing of the petition or complaint and understood and adopted the
allegations set forth therein, and an affirmation that no action or claim
involving the same issues has been filed or commenced in any court,
tribunal or quasi-judicial agency; and, (c) undertake to inform the court
promptly and reasonably of any change in the stance of the client agency.

Anent the document that may be annexed to a petition or complaint under

letter (b) hereof, the letter-endorsement of the client agency to the OSG, or
other correspondence to prove that the subject-matter of the initiatory
pleading had been previously discussed between the OSG and its client, is
satisfactory evidence of the facts under letter (b) above. In this exceptional
situation where the OSG signs the verification and certificate of non-forum
shopping, the court reserves the authority to determine the sufficiency of the
OSG’s action as measured by the equitable considerations discussed
herein.

Finally, after our lengthy discourse on the technical imperfections afflicting

the instant case, we resolve the substantive issue of whether respondent is
entitled to receive back salaries and other benefits for the period that she
was illegally dismissed. Obviously, the answer is in the affirmative.

There is more than substantial evidence in the record consisting of the

general payroll and attendance sheets to prove that petitioner assumed and
exercised the functions of Director II and Manila Information and Liaisoning
Officer at MSU as early as June 1995 after the MSU Board of Regents
approved her permanent appointment which was issued earlier on 10 April
1995.45 It cannot be refuted that in September 1998 she was terminated
from the service on the alleged ground of expiration of her term and stopped
from performing the functions of her position, and subsequently reinstated to
 293

her job upon the declaration of the CSC that her dismissal from the service
was illegal. Clearly, the CSC gravely erred when thereafter it ruled that
respondent did not actually assume and perform the duties of her position
so as to deprive her of back wages and other benefits.

In Gabriel v. Domingo46 this Court held that an illegally dismissed

government employee who is later ordered reinstated is entitled to back
wages and other monetary benefits from the time of his illegal dismissal up
to his reinstatement. This is only fair and sensible because an employee
who is reinstated after having been illegally dismissed is considered as not
having left his office and should be given a comparable compensation at the
time of his reinstatement.

Respondent cannot be faulted for her inability to work or to render any

service from the time she was illegally dismissed up to the time of her
reinstatement. The policy of "no work, no pay" cannot be applied to her, for
such distressing state of affairs was not of her own making or liking even as
her family suffered tremendously as a consequence of her removal and
while she was jobless. Verily, to withhold her back salaries and other
benefits during her illegal dismissal would put to naught the constitutional
guarantee of security of tenure for those in the civil service.

We also agree with the Court of Appeals that MSU cannot be made to pay
all accruing back salaries and other benefits in favor of
respondent.1âwphi1 There are allegations to the effect that officials of MSU
disobeyed in bad faith the writ of execution issued by the CSC. In Gabriel v.
Domingo47 we held that if the illegal dismissal, including the refusal to
reinstate an employee after a finding of unlawful termination, is found to
have been made in bad faith or due to personal malice of the superior
officers then they will be held personally accountable for the employee’s
back salaries; otherwise, the government disburses funds to answer for
such arbitrary dismissal.48 This rule is also enunciated in Secs. 3849 and
3950 of Book I, E.O. 292, and in Secs. 53,51 55,52 5653 and 5854 of Rule XIV of
the Omnibus Civil Service Rules and Regulations.

Accordingly, MSU as a government institution must compensate respondent

with back salaries and other benefits only from the time of her illegal
dismissal, which according to the case record began sometime in October
1998, until the motion for reconsideration of the MSU was denied and a writ
of execution for respondent’s reinstatement as Director II and Manila
Information and Liaisoning Officer was issued. The reckoning period is not 8
March 2001 as determined by the appellate court but 19 July 2001 when
CSC Resolution No. 01-1225 was promulgated wherein the motion for
reconsideration of the MSU was denied with finality and the latter was
explicitly commanded to allow respondent to assume and exercise the
functions of Director II and Manila Information and Liaisoning Officer. For, a
 294

final decision of the CSC is immediately executory unless a motion for

reconsideration is filed in the meantime.55

The back wages and other benefits accruing after 19 July 2001 are to be
treated separately since they must be collected in the proper forum wherein
the assertions of malice and ill will in the failure to reinstate respondent to
her post are threshed out and the concerned parties given the full
opportunity to be heard. Until such separate proceeding has been instituted
and decided, it is premature to fix the liability for this portion of respondent’s
back wages and other benefits upon either the government as represented
by MSU or the accountable officers thereof.

WHEREFORE, the instant Petition for Review is DENIED. The Decision of

the Court of Appeals dated 28 October 2002 is AFFIRMED except that the
cut-off date for the payment of back salaries to respondent should be
adjusted from the date of her illegal dismissal to "19 July 2001," instead of
"8 March 2001," since it was only on 19 July 2001 that MSU’s motion for
reconsideration was denied and the order of execution finally issued by the
Civil Service Commission specifically directing MSU to reinstate respondent
Pangandaman-Gania and exercise the functions of her position with the
promulgation of CSC Resolution No. 01-1225.

This is without prejudice to respondent’s claim for back salaries and other
benefits in the appropriate forum corresponding to the period after 19 July
2001 until she is actually reinstated as Director II and Manila Information
and Liaisoning Officer.

SO ORDERED.

G.R. No. 138238             September 2, 2003

EDUARDO BALITAOSAN, petitioner,
vs.
THE SECRETARY OF EDUCATION, CULTURE AND
SPORTS, respondent.

CORONA, J.:

Before us is a petition for review of the April 15, 1999 resolution1 of the
Court of Appeals denying petitioner’s motion for partial reconsideration of its
decision dated November 9, 1998 which ordered petitioner’s reinstatement,
without backwages.

Petitioner was among the public school teachers who were dismissed by
then DECS Secretary Isidro Cariño for ignoring the return to work order
while participating in the teacher’s mass strike at Liwasang Bonifacio from
September to October, 1990.
 295

Records reveal that an administrative complaint was filed against petitioner,

together with a certain Dalangin Sarmiento and Filomeno Rafer, charging
them with grave misconduct, gross neglect of duty, gross violation of the
Civil Service Law and Rules of Reasonable Office Regulations, refusal to
perform official duty, gross insubordination, conduct prejudicial to the best
interests of the service and absence without leave.

Petitioner failed to give his explanation on the charges against him despite
due notice. Thus, he was meted preventive suspension for 90 days and
consequently dismissed from the service in a DECS decision dated
November 29, 1990.

Petitioner appealed said decision to the Merit System Protection Board but
his appeal was dismissed for being filed out of time.

Aggrieved, petitioner appealed to the Civil Service Commission but the

appeal and the subsequent motion for reconsideration were both denied in
the resolutions dated September 8, 1994 and April 14, 1998, respectively.

Petitioner then sought recourse from the Court of Appeals via a petition
for certiorari which yielded positive results, obtaining for petitioner an order
of reinstatement without, however, any award of backwages in his favor.
Thus:

WHEREFORE, the petition is hereby given DUE COURSE. Resolution

Nos. 94-4979 and 980819 of the Civil Service Commission are SET
ASIDE. Accordingly, the Department of Education, Culture and Sports’
Decision in Case No. DECS 90-118 is MODIFIED – instead the
petitioner is only guilty of Conduct Prejudicial to the Best Interest of the
Service for which he is meted out the penalty of suspension from the
service for a period of six (6) months without pay considering that the
petitioner has been out of the service for more than seven (7) years
now as a result of his dismissal from the service, the Department of
Education, Culture and Sports is hereby ORDERED to immediately
reinstate petitioner Eduardo Balitaosan.

SO ORDERED.2

Not wholly satisfied with said decision, petitioner moved for its partial
reconsideration, praying for an award of backwages, but the same was
denied in the above assailed resolution dated April 15, 1999.

Thus, the instant petition.

Petitioner alleges that the Court of Appeals committed reversible error when
it refused to apply the ruling in the case of Fabella, et al. vs. Court of
Appeals, et al.3 In the said case, the Court, finding the investigation
 296

committee to be without competent jurisdiction, declared that all

proceedings undertaken were necessarily void and thus could not provide
the legal basis for the suspension or dismissal of the petitioners. The Court
declared a denial of due process because the inclusion of a representative
of a teacher’s organization in the investigating committee, which was
indispensable to ensure an impartial tribunal, was not complied with.
Consequently, it ordered the payment of back salaries, allowances, bonuses
and other benefits and emoluments which had accrued to the teachers
involved during the entire period of their preventive suspension and/or
dismissal from the service.

Petitioner’s reliance on Fabella is totally misplaced.

As aptly observed by the Court of Appeals, in Fabella, the jurisdiction and

composition of the investigation committee was put in issue from the very
start. When the Court found the investigation committee to be without
competent jurisdiction, it declared all the proceedings undertaken by said
committee void; therefore, it could not have provided the legal basis for the
suspension and dismissal of private respondents therein.

In the case at bar, however, aside from the catch-all and sweeping
allegation of "denial of due process," petitioner never questioned the
competence and composition of the investigating committee. He belatedly
raised this issue for the first time in the petition for review before the Court
of Appeals. Thus, the appellate court acted correctly in rejecting petitioner’s
argument.

Issues raised for the first time on appeal cannot be considered because a
party is not permitted to change his theory on appeal. To allow him to do so
is unfair to the other party and offensive to the rules of fair play, justice and
due process.4

In its Decision, the Court of Appeals justified petitioner’s reinstatement:

While We view with approbation the authority of the Department of

Education, Culture and Sports to punish the public school teachers for
engaging in the prohibited action, that is, staging and joining the strike,
We, particularly, take note here the seemingly compartmentalized
treatment the petitioner suffered from the respondent Civil Service
Commission. As petitioner’s appeal to the Merit Systems Protection
Board of the Civil Service Commission was rebuffed for having been
filed out of time and eventually dismissed petitioner, that of Filomeno
Rafer’s, after filing a third motion for reconsideration from the
resolution of the respondent commission dismissing him from the
service, decided Rafer’s case on the merits and reduced his penalty
from dismissal from the service to suspension for six (6) months (Rollo,
 297

p. 29). We are bewildered actually, as Our assessment is that the

petitioner and Rafer are similarly situated, why the respondent
Commission failed to give the same cordiality given to Rafer. Not only
that, in several cases involving public school teachers, the respondent
Commission modified the penalty of dismissal from the service to a
mere reprimand (Alipat vs. Civil Service Commission, CA-G.R. SP No.
38312).5

The fact is that petitioner participated in the mass action which in turn
resulted in the filing of charges against him and his subsequent dismissal
later on. His reinstatement was not the result of exoneration but an act of
liberality by the Court of Appeals. Accordingly, petitioner’s claim for
backwages for the period during which he was not allowed to work must be
denied.

The general rule is that a public official is not entitled to any compensation if
he has not rendered any service. No work, no pay. Since petitioner did not
render any service during the period for which he is now claiming his
salaries, there is no legal or equitable basis to order the payment thereof.6

WHEREFORE, the petition is hereby DENIED. The Resolution of the Court

of Appeals dated April 15, 1999 denying petitioner’s claim for backwages is
AFFIRMED.

SO ORDERED.

G.R. No. 146710-15      March 2, 2001

JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738      March 2, 2001

JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:
 298

On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant
issues are many, the jugular issue involves the relationship between the
ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in
the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was elected
Vice-President. Some ten (10) million Filipinos voted for the petitioner
believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a

plethora of problems that slowly but surely eroded his popularity. His sharp
descent from power started on October 4, 2000. Ilocos Sur Governor, Luis
"Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5,
2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took
the floor and delivered a fiery privilege speech entitled "I Accuse." He
accused the petitioner of receiving some P220 million in jueteng money
from Governor Singson from November 1998 to August 2000. He also
charged that the petitioner took from Governor Singson P70 million on
excise tax on cigarettes intended for Ilocos Sur. The privilege speech was
referred by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and the Committee
on Justice (then headed by Senator Renato Cayetano) for joint
investigation.2

The House of Representatives did no less. The House Committee on Public

Order and Security, then headed by Representative Roilo Golez, decided to
investigate the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the
Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern.3 Two
 299

days later or on October 13, the Catholic Bishops Conference of the

Philippines joined the cry for the resignation of the petitioner.4 Four days
later, or on October 17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme self-sacrifice" of
resignation.5 Former President Fidel Ramos also joined the chorus. Early
on, or on October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and
refused to resign.

The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were
Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former
Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and
Industry.9 On November 3, Senate President Franklin Drilon, and House
Speaker Manuel Villar, together with some 47 representatives defected from
the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on

November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was
unseated by Representative Fuentebella.12 On November 20, the Senate
formally opened the impeachment trial of the petitioner. Twenty-one (21)
senators took their oath as judges with Supreme Court Chief Justice Hilario
G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7,

the impeachment trial started.14 The battle royale was fought by some of the
marquee names in the legal profession. Standing as prosecutors were then
House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private prosecutors led
by now Secretary of Justice Hernando Perez and now Solicitor General
Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy
Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother,
Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points
were the constant conversational piece of the chattering classes. The
dramatic point of the December hearings was the testimony of Clarissa
 300

Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the
spirit of Christmas. When it resumed on January 2, 2001, more bombshells
were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu
who served as petitioner's Secretary of Finance took the witness stand. He
alleged that the petitioner jointly owned BW Resources Corporation with Mr.
Dante Tan who was facing charges of insider trading.16 Then came the
fateful day of January 16, when by a vote of 11-1017 the senator-judges
ruled against the opening of the second envelope which allegedly contained
evidence showing that petitioner held P3.3 billion in a secret bank account
under the name "Jose Velarde." The public and private prosecutors walked
out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous
outburst of anger that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and speeches full of sulphur
were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker

Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement
of the impeachment proceedings until the House of Representatives shall
have resolved the issue of resignation of the public prosecutors. Chief
Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed a
human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the continuing rallies
at the EDSA Shrine, all masters of the physics of persuasion, attracted more
and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At
1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that
General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine.22 In the presence of former
 301

Presidents Aquino and Ramos and hundreds of thousands of cheering

demonstrators, General Reyes declared that "on behalf of Your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little
later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs
quickly resigned from their posts.25 Rallies for the resignation of the
petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelope.26 There was no turning back the
tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round
of negotiations for the peaceful and orderly transfer of power started at
Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
Macel Fernandez, head of the Presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and
now Secretary of Justice Hernando Perez.27 Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which
resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide
would administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to

respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner
and his family hurriedly left Malacañang Palace.29 He issued the following
press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo

took her oath as President of the Republic of the Philippines. While
along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.
 302

It is for this reason that I now leave Malacañang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin
the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the
same service of our country.

I call on all my supporters and followers to join me in to promotion of a

constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the
following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution,

I am hereby transmitting this declaration that I am unable to exercise
the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on
January 20.23 Another copy was transmitted to Senate President Pimentel
on the same day although it was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria

Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-Arroyo to be sworn
in as President of the Republic of the Philippines, addressed to the
Chief Justice and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter, the court
Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20,
2001 to administer the oath of office of Vice President Gloria
 303

Macapagal-Arroyo as President of the Philippines, at noon of January

20, 2001.

This resolution is without prejudice to the disposition of any justiciable

case that may be filed by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as

ambassadors and special envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On January 23, in a
reception or vin d' honneur at Malacañang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent Arroyo.35 US
President George W. Bush gave the respondent a telephone call from the
White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new

Speaker of the House of Representatives.37 The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-
Arroyo, President of the Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the
Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's
goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the Political
Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona,

Jr., as her Vice President.42 The next day, February 7, the Senate adopted
Resolution No. 82 confirming the nomination of Senator Guingona,
Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John
Osmena voted "yes" with reservations, citing as reason therefor the pending
challenge on the legitimacy of respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were
absent.44 The House of Representatives also approved Senator Guingona's
nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as
Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the

impeachment court is functus officio and has been terminated.47 Senator
Miriam Defensor-Santiago stated "for the record" that she voted against the
closure of the impeachment court on the grounds that the Senate had failed
to decide on the impeachment case and that the resolution left open the
 304

question of whether Estrada was still qualified to run for another elective
post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public

acceptance rating jacked up from 16% on January 20, 2001 to 38% on
January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS
from February 2-7, 2001, results showed that 61% of the Filipinos
nationwide accepted President Arroyo as replacement of petitioner Estrada.
The survey also revealed that President Arroyo is accepted by 60% in Metro
Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and
55% in Mindanao. Her trust rating increased to 52%. Her presidency is
accepted by majorities in all social classes: 58% in the ABC or middle-to-
upper classes, 64% in the D or mass class, and 54% among the E's or very
poor class.50

After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the Office
of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-
1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture,
graft and corruption, bribery, perjury, serious misconduct, violation of the
Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-
1755 filed by the Graft Free Philippines Foundation, Inc. on November 24,
2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on November 28, 2000 for malversation of public funds, illegal use of public
funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by
Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect
bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000
for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent

Ombudsman to investigate the charges against the petitioner. It is chaired
by Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel
issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer
to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed
with this Court GR No. 146710-15, a petition for prohibition with a prayer for
a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB
 305

0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed
for judgment "confirming petitioner to be the lawful and incumbent President
of the Republic of the Philippines temporarily unable to discharge the duties
of his office, and declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting capacity pursuant to the
provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on
the same day, February 6, required the respondents "to comment thereon
within a non-extendible period expiring on 12 February 2001." On February
13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
146738 and the filing of the respondents' comments "on or before 8:00 a.m.
of February 15."

On February 15, the consolidated cases were orally argued in a four-hour

hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate
Justice Artemio Panganiban52 recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating
that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5)
days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of
resolution and press statement for "Gag Order" on respondent Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on
January 20, 2001 declaring the office of the President vacant and that
neither did the Chief Justice issue a press statement justifying the
alleged resolution;

(2) to order the parties and especially their counsel who are officers of
the Court under pain of being cited for contempt to refrain from making
any comment or discussing in public the merits of the cases at bar
while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining

the respondent Ombudsman from resolving or deciding the criminal
cases pending investigation in his office against petitioner, Joseph E.
Estrada and subject of the cases at bar, it appearing from news reports
that the respondent Ombudsman may immediately resolve the cases
against petitioner Joseph E. Estrada seven (7) days after the hearing
 306

held on February 15, 2001, which action will make the cases at bar
moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar
were deemed submitted for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether

petitioner Estrada is a President on leave while respondent Arroyo is
an Acting President.

III

Whether conviction in the impeachment proceedings is a condition

precedent for the criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on

the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a
political question, and hence, are beyond the jurisdiction of this Court to
decide. They contend that shorn of its embroideries, the cases at bar assail
the "legitimacy of the Arroyo administration." They stress that respondent
Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic; that she has
exercised the powers of the presidency and that she has been recognized
by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.
 307

We reject private respondents' submission. To be sure, courts here and

abroad, have tried to lift the shroud on political question but its exact latitude
still splits the best of legal minds. Developed by the courts in the 20th
century, the political question doctrine which rests on the principle of
separation of powers and on prudential considerations, continue to be
refined in the mills of constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political

question is found a textually demonstrable constitutional commitment
of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements
by various departments on question. Unless one of these formulations
is inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political question's presence. The
doctrine of which we treat is one of 'political questions', not of 'political
cases'."

In the Philippine setting, this Court has been continuously confronted with
cases calling for a firmer delineation of the inner and outer perimeters of a
political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent
upon the wisdom, not legality of a particular measure." To a great degree,
the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only
to settle actual controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of
government.59 Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
 308

instrumentality of government. Clearly, the new provision did not just

grant the Court power of doing nothing. In sync and symmetry with this
intent are other provisions of the 1987 Constitution trimming the so called
political thicket. Prominent of these provisions is section 18 of Article VII
which empowers this Court in limpid language to "x x x review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines

and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.61 and
related cases62 to support their thesis that since the cases at bar involve
the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will
show that they are inapplicable. In the cited cases, we held that the
government of former President Aquino was the result of a successful
revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was
installed through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended." In is
familiar learning that the legitimacy of a government sired by a successful
revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character.
The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to preserve and
defend the 1987 Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the authority of the 1987
Constitution.1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People

Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an
exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and
the succession of the Vice President as President are subject to judicial
review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.
 309

Freedom of speech and the right of assembly are treasured by Filipinos.

Denial of these rights was one of the reasons of our 1898 revolution against
Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among
"the reforms sine quibus non."65 The Malolos Constitution, which is the
work of the revolutionary Congress in 1898, provided in its Bill of Rights that
Filipinos shall not be deprived (1) of the right to freely express his ideas or
opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send petitions to the
authorities, individually or collectively." These fundamental rights were
preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April
7, 1900 issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of the
rights of the people to peaceably assemble and petition the Government for
redress of grievances." The guaranty was carried over in the Philippine Bill,
the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress
of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and

the 197368 Constitution. These rights are now safely ensconced in section
4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to

democracy is now self-evident. The reasons are well put by Emerson: first,
freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a
more adaptable and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress
of a society can take place without destroying the society."70 In Hague
v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights
Committee of the American Bar Association which emphasized that "the
basis of the right of assembly is the substitution of the expression of opinion
and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this
Court similar stressed that "… it should be clear even to those with
 310

intellectual deficits that when the sovereign people assemble to petition for
redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of certain
provisions in the 1987 Constitution, notably section 1 of Article II,74 and
section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope
of presidential immunity from suit. They also involve the correct calibration
of the right of petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,77 the doctrine has been laid down that "it is
emphatically the province and duty of the judicial department to say
what the law is . . ." Thus, respondent's in vocation of the doctrine of
political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose
factual ingredient is determinable from the records of the case and by resort
to judicial notice. Petitioner denies he resigned as President or that he
suffers from a permanent disability. Hence, he submits that the office of the
President was not vacant when respondent Arroyo took her oath as
President.

The issue brings under the microscope the meaning of section 8, Article VII
of the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or

resignation of the President, the Vice President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and
Vice President, the President of the Senate or, in case of his inability,
the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected
and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be

considered resigned as of January 20, 2001 when respondent took her oath
as the 14th President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond
 311

quibble: there must be an intent to resign and the intent must be

coupled by acts of relinquishment.78 The validity of a resignation is not
government by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacañang Palace in the
afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined from
his act and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the

petitioner, it is important to follow the succession of events after the exposẻ
of Governor Singson. The Senate Blue Ribbon Committee investigated. The
more detailed revelations of petitioner's alleged misgovernance in the Blue
Ribbon investigation spiked the hate against him. The Articles of
Impeachment filed in the House of Representatives which initially was given
a near cipher chance of succeeding snowballed. In express speed, it gained
the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting
him. Respondent Arroyo quit as Secretary of Social Welfare. Senate
President Drilon and former Speaker Villar defected with 47 representatives
in tow. Then, his respected senior economic advisers resigned together with
his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his
resignation intensified. The call reached a new crescendo when the eleven
(11) members of the impeachment tribunal refused to open the second
envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on

the state of mind of the petitioner. The window is provided in the "Final
Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara
serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that
in the morning of January 19, petitioner's loyal advisers were worried about
the swelling of the crowd at EDSA, hence, they decided to create an ad hoc
committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner
pulled Secretary Angara into his small office at the presidential residence
 312

and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this
is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the
petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. The proposal for a snap election for
president in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency even at that
time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically announced the
AFP's withdrawal of support from the petitioner and their pledge of support
to respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to
advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The
sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified
exit. He gave the proposal a sweetener by saying that petitioner would be
allowed to go abroad with enough funds to support him and his
family.83 Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never
leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara,
"Ed, Angie (Reyes) guaranteed that I would have five days to a week in the
palace."85 This is proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already concerned with the
five-day grace period he could stay in the palace. It was a matter of
time.

The pressure continued piling up. By 11:00 p.m., former President Ramos
called up Secretary Angara and requested, "Ed, magtulungan tayo para
magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was
already about a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power

immediately started at 12:20 a.m. of January 20, that fateful Saturday.
The negotiation was limited to three (3) points: (1) the transition period of
five days after the petitioner's resignation; (2) the guarantee of the safety of
the petitioner and his family, and (3) the agreement to open the second
envelope to vindicate the name of the petitioner.87 Again, we note that the
resignation of petitioner was not a disputed point. The petitioner
cannot feign ignorance of this fact. According to Secretary Angara, at
2:30 a.m., he briefed the petitioner on the three points and the following
entry in the Angara Diary shows the reaction of the petitioner, viz:

"x x x
 313

I explain what happened during the first round of negotiations.

The President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope to
clear his name.

If the envelope is opened, on Monday, he says, he will leave by

Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado

nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I
am very tired. I don't want any more of this – it's too painful. I'm
tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The
intent to resign is clear when he said "x x x Ayoko na masyado nang
masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the

Angara Diary, the following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20
January 2001, that will be effective on Wednesday, 24 January 2001,
on which day the Vice President will assume the Presidency of the
Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the

assumption of the new administration shall commence, and persons
designated by the Vice President to various positions and offices of the
government shall start their orientation activities in coordination with
the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National

Police shall function under the Vice President as national military and
police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall
guarantee the security of the President and his family as approved by
the national military and police authority (Vice President).
 314

5. It is to be noted that the Senate will open the second envelope in

connection with the alleged savings account of the President in the
Equitable PCI Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals,

agree and undertake as follows:

'1. A transition will occur and take place on Wednesday, 24 January

2001, at which time President Joseph Ejercito Estrada will turn over
the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security
and safety of their person and property throughout their natural
lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the

Philippines (AFP) through the Chief of Staff, as approved by the
national military and police authorities – Vice President (Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an
impeachment court will authorize the opening of the second envelope
in the impeachment trial as proof that the subject savings account does
not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and
24 January 2001 (the 'Transition Period"), the incoming Cabinet
members shall receive an appropriate briefing from the outgoing
Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National
Police (PNP) shall function Vice President (Macapagal) as national
military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director
general shall obtain all the necessary signatures as affixed to this
agreement and insure faithful implementation and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement

in the form and tenor provided for in "Annex A" heretofore attached to
this agreement."89
 315

The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the
resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised

on the resignation of the petitioner was further refined. It was then, signed
by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the
signing by the party of the respondent Arroyo was aborted by her oath-
taking. The Angara diary narrates the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm

agreement on the five points to effect a peaceful transition. I can hear
the general clearing all these points with a group he is with. I hear
voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January

2001, which resignation shall be effective on 24 January 2001, on
which day the Vice President will assume the presidency of the
Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration

shall commence on 20 January 2001, wherein persons designated by
the Vice President to various government positions shall start
orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall
guarantee the safety and security of the President and his families
throughout their natural lifetimes as approved by the national military
and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function
under the Vice President as national military and police authorities.

'5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be
offered as proof that the subject savings account does not belong to
the President.
 316

The Vice President shall issue a public statement in the form and tenor
provided for in Annex "B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our
agreement, signed by our side and awaiting the signature of the United
opposition.

And then it happens. General Reyes calls me to say that the Supreme
Court has decided that Gloria Macapagal-Arroyo is President and will
be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why

couldn't you wait? What about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,

we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a
double cross.

But I immediately instruct Macel to delete the first provision on

resignation since this matter is already moot and academic. Within
moments, Macel erases the first provision and faxes the documents,
which have been signed by myself, Dondon and Macel, to Nene
Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes

for the signatures of the other side, as it is important that the provisions
on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief
Justice Davide will administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the

Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the
compound.
 317

The president is having his final meal at the presidential Residence

with the few friends and Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of
defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support for
the President.

1 p.m. – The President's personal staff is rushing to pack as many of

the Estrada family's personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to

release a final statement before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President

Gloria Macapagal-Arroyo took her oath as President of the Republic of
the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil
society.

It is for this reason that I now leave Malacañang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin
the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the
same service of our country.

I call on all my supporters and followers to join me in the promotion of

a constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It

was confirmed by his leaving Malacañang. In the press release containing
his final statement, (1) he acknowledged the oath-taking of the respondent
as President of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He
did not say he was leaving the Palace due to any kind inability and that he
was going to re-assume the presidency as soon as the disability disappears:
(3) he expressed his gratitude to the people for the opportunity to serve
 318

them. Without doubt, he was referring to the past opportunity given him to
serve the people as President (4) he assured that he will not shirk from any
future challenge that may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after occupying the office of
the president which he has given up; and (5) he called on his supporters to
join him in the promotion of a constructive national spirit of reconciliation
and solidarity. Certainly, the national spirit of reconciliation and solidarity
could not be attained if he did not give up the presidency. The press release
was petitioner's valedictory, his final act of farewell. His presidency is now in
the part tense.

It is, however, urged that the petitioner did not resign but only took a
temporary leave dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I

am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings

filed by the petitioner in the cases at bar did not discuss, may even intimate,
the circumstances that led to its preparation. Neither did the counsel of the
petitioner reveal to the Court these circumstances during the oral argument.
It strikes the Court as strange that the letter, despite its legal value, was
never referred to by the petitioner during the week-long crisis. To be sure,
there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern and that he was
leaving the reins of government to respondent Arroyo for the time bearing.
Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of
the petitioner clearly as a later act. If, however, it was prepared after the
press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice
nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot
given any legal significance to petitioner's letter and this shall be discussed
in issue number III of this Decision.
 319

After petitioner contended that as a matter of fact he did not resign, he also
argues that he could not resign as a matter of law. He relies on section 12 of
RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending

an investigation, criminals or administrative, or pending a prosecution
against him, for any offense under this Act or under the provisions of
the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any
comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293.
The original draft of the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it now stands.
However, in his sponsorship speech, Senator Arturo Tolentino, the author of
the bill, "reserved to propose during the period of amendments the inclusion
of a provision to the effect that no public official who is under prosecution for
any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of
amendments, the following provision was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to

resign or retire pending an investigation, criminal or administrative, or
pending a prosecution against him, for any offense under the Act or
under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a

bar to his prosecution under this Act for an offense committed during
his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the
President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the new
bill, but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the
resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law
ought to be obvious. It is to prevent the act of resignation or retirement from
being used by a public official as a protective shield to stop the investigation
of a pending criminal or administrative case against him and to prevent his
prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render
 320

service for that would be a violation of his constitutional right.94 A public

official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing
administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative
proceedings against him. He cannot use his resignation or retirement to
avoid prosecution.

There is another reason why petitioner's contention should be rejected. In

the cases at bar, the records show that when petitioner resigned on January
20, 2001, the cases filed against him before the Ombudsman were OMB
Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758.
While these cases have been filed, the respondent Ombudsman refrained
from conducting the preliminary investigation of the petitioner for the reason
that as the sitting President then, petitioner was immune from suit.
Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019
cannot therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative

investigation that, under section 12 of RA 3019, bars him from resigning.
We hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-
judges voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as

President.

We shall now tackle the contention of the petitioner that he is merely

temporarily unable to perform the powers and duties of the presidency, and
hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same day
to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no

power to adjudge the inability of the petitioner to discharge the powers and
 321

duties of the presidency. His significant submittal is that "Congress has the
ultimate authority under the Constitution to determine whether the President
is incapable of performing his functions in the manner provided for in section
11 of article VII."95 This contention is the centerpiece of petitioner's
stance that he is a President on leave and respondent Arroyo is only an
Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the

Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the

President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting
President.

Thereafter, when the President transmits to the President of the

Senate and to the Speaker of the House of Representatives his written
declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of the Senate and
to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President;
otherwise, the President shall continue exercising the powers and
duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming

inability to the Senate President and Speaker of the House;
 322

2. Unaware of the letter, respondent Arroyo took her oath of office

as President on January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed
on January 24, 2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House

Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on

the ability of former President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the Philippine National
Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme

Court, Vice President Gloria Macapagal-Arroyo was sworn in as
President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international

community had extended their recognition to Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

espoused a policy of national healing and reconciliation with justice for
the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government

cannot be achieved if it is divided, thus by reason of the constitutional
duty of the House of Representatives as an institution and that of the
individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable,
continuing government and therefore must remove all obstacles to the
attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to

exert all efforts to unify the nation, to eliminate fractious tension, to
heal social and political wounds, and to be an instrument of national
reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;
 323

WHEREAS, without surrending its independence, it is vital for the

attainment of all the foregoing, for the House of Representatives to
extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding
no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to

the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a
partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on

January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House

Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-

ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA,
JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due

to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice President
from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

nominated Senate Minority Leader Teofisto T. Guingona Jr., to the
position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant

endowed with integrity, competence and courage; who has served the
Filipino people with dedicated responsibility and patriotism;
 324

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling

qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities
which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of

Representatives, That the House of Representatives confirms the
nomination of Senator Teofisto T. Guingona, Jr. as the Vice President
of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on

February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some

twelve (12) members of the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an

opportunity for meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome

challenges the nation needs unity of purpose and resolve cohesive
resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital
legislative measures in unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new

government of President Gloria Macapagal-Arroyo and resolve to
discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No.

82100 which states:
 325

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL

ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to

the assumption to the Presidency of Vice President Gloria Macapagal-
Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice President
from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the
position of Vice President of the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant

endowed with integrity, competence and courage; who has served the
Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities

of true statemanship, having served the government in various
capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the land - which qualities
merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the

nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the
Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate

Resolution No. 83101 which states:
 326

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT

IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the

Impeachment Court is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on

Monday, January 15, Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court

including the "second envelope" be transferred to the Archives of the
Senate for proper safekeeping and preservation in accordance with the
Rules of the Senate. Disposition and retrieval thereof shall be made
only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this

Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to

the existence of vacancy in the Senate and calling on the COMELEC to fill
up such vacancy through election to be held simultaneously with the regular
election on May 14, 2001 and the Senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for the unexpired
term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into

law by respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability to govern
is only momentary.

What leaps to the eye from these irrefutable facts is that both houses
of Congress have recognized respondent Arroyo as the President.
Implicitly clear in that recognition is the premise that the inability of
 327

petitioner Estrada. Is no longer temporary. Congress has clearly

rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim
of temporary inability of petitioner Estrada and thereafter revise the
decision of both Houses of Congress recognizing respondent Arroyo as
president of the Philippines. Following Tañada v. Cuenco,102 we hold that
this Court cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the Legislative xxx
branch of the government." Or to use the language in Baker vs.
Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass
upon petitioner's claim of inability to discharge the power and duties of the
presidency. The question is political in nature and addressed solely to
Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of
powers.

In fine, even if the petitioner can prove that he did not resign, still, he
cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that respondent Arroyo
is the de jure, president made by a co-equal branch of government
cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him
before the respondent Ombudsman should be prohibited because he has
not been convicted in the impeachment proceedings against him;
and second, he enjoys immunity from all kinds of suit, whether criminal or
civil.

Before resolving petitioner's contentions, a revisit of our legal history

executive immunity will be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of
the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police
and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
 328

" The principle of nonliability, as herein enunciated, does not mean that
the judiciary has no authority to touch the acts of the Governor-
General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk
defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean,
either that a person injured by the executive authority by an act
unjustifiable under the law has n remedy, but must submit in silence.
On the contrary, it means, simply, that the governors-general, like the
judges if the courts and the members of the Legislature, may not be
personally mulcted in civil damages for the consequences of an act
executed in the performance of his official duties. The judiciary has full
power to, and will, when the mater is properly presented to it and the
occasion justly warrants it, declare an act of the Governor-General
illegal and void and place as nearly as possible in status quo any
person who has been deprived his liberty or his property by such act.
This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been
invaded, even by the highest authority of the state. The thing which the
judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any
more than it can a member of the Philippine Commission of the
Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive
may not be personally sued at all in relation to acts which he claims to
perform as such official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion which touched the
liability of judges and drew an analogy between such liability and that
of the Governor-General, that the latter is liable when he acts in a case
so plainly outside of his power and authority that he can not be said to
have exercised discretion in determining whether or not he had the
right to act. What is held here is that he will be protected from personal
liability for damages not only when he acts within his authority, but also
when he is without authority, provided he actually used discretion and
judgement, that is, the judicial faculty, in determining whether he had
authority to act or not. In other words, in determining the question of
his authority. If he decide wrongly, he is still protected provided the
question of his authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he s not protected if
the lack of authority to act is so plain that two such men could not
honestly differ over its determination. In such case, be acts, not as
Governor-General but as a private individual, and as such must
answer for the consequences of his act."
 329

Mr. Justice Johnson underscored the consequences if the Chief Executive

was not granted immunity from suit, viz "xxx. Action upon important matters
of state delayed; the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to
unrest and disorder resulting in a way, in distrust as to the integrity of
government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision
on executive immunity. Then came the tumult of the martial law years under
the late President Ferdinand E. Marcos and the 1973 Constitution was born.
In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter,
no suit whatsoever shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President

referred to in Article XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled,

"Presidential Immunity and All The King's Men: The Law of Privilege As a
Defense To Actions For Damages,"106 petitioner's learned counsel, former
Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the
modifications effected by this constitutional amendment on the existing law
on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better

by enlarging and fortifying the absolute immunity concept. First, we
extended it to shield the President not only form civil claims but also
from criminal cases and other claims. Second, we enlarged its scope
so that it would cover even acts of the President outside the scope of
official duties. And third, we broadened its coverage so as to include
not only the President but also other persons, be they government
officials or private individuals, who acted upon orders of the President.
It can be said that at that point most of us were suffering from AIDS (or
absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust.
He denounced the immunity as a return to the anachronism "the king can do
no wrong."107 The effort failed.
 330

The 1973 Constitution ceased to exist when President Marcos was ousted
from office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the

draft proposal the immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did very well in striking out
second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his
tenure, considering that if we do not provide him that kind of an
immunity, he might be spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it

understood in present jurisprudence that during his tenure he is
immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that explicit
and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query,
Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history.
We reject his argument that he cannot be prosecuted for the reason that he
must first be convicted in the impeachment proceedings. The impeachment
trial of petitioner Estrada was aborted by the walkout of the prosecutors and
by the events that led to his loss of the presidency. Indeed, on February 7,
2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is
now functus officio, it is untenable for petitioner to demand that he should
first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal
 331

prosecution. To be sure, the debates in the Constitutional Commission

make it clear that when impeachment proceedings have become moot due
to the resignation of the President, the proper criminal and civil cases may
already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been

filed against the President, for example, and the President resigns
before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one

from office, then his resignation would render the case moot and
academic. However, as the provision says, the criminal and civil
aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that

'incumbent Presidents are immune from suit or from being brought to court
during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non
to his criminal prosecution before the Ombudsman that he be convicted in
the impeachment proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for they have a
different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as

a non-sitting President. The cases filed against petitioner Estrada are
criminal in character. They involve plunder, bribery and graft and corruption.
By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a
non-sitting president. Petitioner cannot cite any decision of this Court
licensing the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that immunity is
an inoculation from liability for unlawful acts and conditions. The rule is that
unlawful acts of public officials are not acts of the State and the officer who
acts illegally is not acting as such but stands in the same footing as any
trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal

a judicial disinclination to expand the privilege especially when it impedes
the search for truth or impairs the vindication of a right. In the 1974 case of
US v. Nixon,115 US President Richard Nixon, a sitting President, was
 332

subpoenaed to produce certain recordings and documents relating to his

conversations with aids and advisers. Seven advisers of President Nixon's
associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential
campaign. President Nixon himself was named an unindicted co-
conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could
be made amenable to judicial proceedings. The claim was rejected by the
US Supreme Court. It concluded that "when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the
president from civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine in the case of
Clinton v. Jones117 where it held that the US President's immunity from suits
for money damages arising out of their official acts is inapplicable to
unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the

scope of executive immunity in our jurisdiction. One of the great themes of
the 1987 Constitution is that a public office is a public trust.118 It declared as
a state policy that "the State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all times
be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency act with patriotism and justice, and lead
modest lives."120 It set the rule that 'the right of the State to recover
properties unlawfully acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by prescription,
latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft
court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on
complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be
illegal, unjust improper or inefficient."123 The Office of the Ombudsman was
also given fiscal autonomy.124 These constitutional policies will be devalued
if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

 333

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be

stopped from conducting the investigation of the cases filed against him due
to the barrage of prejudicial publicity on his guilt. He submits that the
respondent Ombudsman has developed bias and is all set file the criminal
cases violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on
how to deal with the rain of unrestrained publicity during the investigation
and trial of high profile cases.125 The British approach the problem with the
presumption that publicity will prejudice a jury. Thus, English courts readily
stay and stop criminal trials when the right of an accused to fair trial suffers
a threat.126 The American approach is different. US courts assume a
skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of
tests to resolve this issue, i.e., substantial; probability of irreparable harm,
strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this
Court to stop the trials or annul convictions in high profile criminal
cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we rule that
the right of an accused to a fair trial is not incompatible to a free press.
To be sure, responsible reporting enhances accused's right to a fair
trial for, as well pointed out, a responsible press has always been
regarded as the criminal field xxx. The press does not simply publish
information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive
public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to

fair trial. The mere fact that the trial of appellant was given a day-to-
day, gavel-to-gavel coverage does not by itself prove that the publicity
so permeated the mind of the trial judge and impaired his impartiality.
For one, it is impossible to seal the minds of members of the bench
from pre-trial and other off-court publicity of sensational criminal cases.
The state of the art of our communication system brings news as they
happen straight to our breakfast tables and right to our bedrooms.
These news form part of our everyday menu of the facts and fictions of
life. For another, our idea of a fair and impartial judge is not that of a
 334

hermit who is out of touch with the world. We have not installed the jury
system whose members are overly protected from publicity lest they
lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their
impartiality.

At best, appellant can only conjure possibility of prejudice on the part

of the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et
al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of
prejudicial publicity, there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a
consequence of the extensive media coverage of the pre-trial and trial
of his case. The totality of circumstances of the case does not prove
that the trial judge acquired a fixed opinion as a result of prejudicial
publicity, which is incapable of change even by evidence presented
during the trial. Appellant has the burden to prove this actual bias and
he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs.

Hon. Raul de Leon, etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to

due process while undergoing preliminary investigation. We find no
procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases

cannot be avoided and oftentimes, its excessiveness has been
aggravated by kinetic developments in the telecommunications
industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the
case at bar. Our daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public with
views not too many of which are sober and sublime. Indeed, even the
principal actors in the case – the NBI, the respondents, their lawyers
and their sympathizers have participated in this media blitz. The
possibility of media abuses and their threat to a fair trial
 335

notwithstanding, criminal trials cannot be completely closed to the

press and public. In the seminal case of Richmond Newspapers, Inc. v.
Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in

Anglo-American justice demonstrates conclusively that at the time
this Nation's organic laws were adopted, criminal trials both here
and in England had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community
reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic
purpose, providing an outlet for community concern, hostility and
emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States,
348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal
trial under this Nation's system of justice, Cf., e,g., Levine v.
United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly
guaranteed by the First Amendment, share a common core
purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing
freedom such as those of speech and press, the First Amendment
can be read as protecting the right of everyone to attend trials so
as give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the
context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at the
time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free
exercise of the other First Amendment rights with which the
draftsmen deliberately linked it. A trial courtroom is a public place
where the people generally and representatives of the media
have a right to be present, and where their presence historically
 336

has been thought to enhance the integrity and quality of what

takes place.
c. Even though the Constitution contains no provision which be its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees
of the First Amendment: without the freedom to attend such trials,
which people have exercised for centuries, important aspects of
freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity

under certain circumstances can deprive an accused of his due
process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al.,
we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and
content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the
sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their
long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-
record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary
nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to

warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof.131 He needs to show
more weighty social science evidence to successfully prove the impaired
capacity of a judge to render a bias-free decision. Well to note, the cases
against the petitioner are still undergoing preliminary investigation by a
special panel of prosecutors in the office of the respondent Ombudsman. No
allegation whatsoever has been made by the petitioner that the minds of the
 337

members of this special panel have already been infected by bias because
of the pervasive prejudicial publicity against him. Indeed, the special panel
has yet to come out with its findings and the Court cannot second guess
whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent

Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of slanted
news reports, and he has buckled to the threats and pressures directed at
him by the mobs."132 News reports have also been quoted to establish that
the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner

is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court especially in
light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the
performance of official duty to which he is entitled. Nor can we adopt the
theory of derivative prejudice of petitioner, i.e., that the prejudice of
respondent Ombudsman flows to his subordinates. In truth, our Revised
Rules of Criminal Procedure, give investigation prosecutors the
independence to make their own findings and recommendations albeit they
are reviewable by their superiors.134 They can be reversed but they can not
be compelled cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to file the
cases against the petitioner and the latter believes that the findings of
probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner
will now acquire a different dimension and then move to a new stage - - -
the Office of the Ombudsman. Predictably, the call from the majority for
instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the
right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135 To be sure, the
duty of a prosecutor is more to do justice and less to prosecute. His is the
obligation to insure that the preliminary investigation of the petitioner shall
 338

have a circus-free atmosphere. He has to provide the restraint against what

Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage
and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and should
never be the definition of the rule of law. If democracy has proved to be the
best form of government, it is because it has respected the right of the
minority to convince the majority that it is wrong. Tolerance of multiformity of
thoughts, however offensive they may be, is the key to man's progress from
the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging

the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the
Republic are DISMISSED.

SO ORDERED.

G.R. No. 126576 March 5, 1997

MAYOR RICARDO M. ANGOBUNG, petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE
ALBAN, respondents.

HERMOSISIMA, JR., J.:

Before us on certiorari is a petition seeking to annul and set aside

Resolution No. 96-29511 dated October 15, 1996 issued by public
respondent Commission on Elections (COMELEC) which (1) approved the
Petition for Recall filed and signed by only one registered voter — herein
private respondent Ma. Aurora Siccuan de Alban, against petitioner —
incumbent Mayor Ricardo Angobung; (2) set the further signing of said
petition by the rest of the registered voters of Tumauini, Isabela on
November 9, 1996; and (3) in case the said petition is signed by at least
25% of the total number of registered votes in Tumauini, Isabela, scheduled
the recall election on December 2, 1996.

On October 25, 1996, this court issued a Temporary Restraining

Order2 enjoining public respondent COMELEC from implementing and
enforcing Resolution No. 96-2951.

The facts of this case are not disputed.

 339

Petitioner won as the duly elected Mayor of the Municipality of Tumauini,

Isabela in the local elections of 1995. He garnered 55% of all the votes cast.
Private respondent de Alban was also a candidate in said elections.

Sometime in early September, 1996, private respondent filed with the Local
Election Registrar of Tumauini, Isabela, a Petition for Recall3 against
petitioner. On September 12, 1996, petitioner received a copy of this
petition. Subsequently said petition was forwarded to the Regional Office in
Tuguegarao, Cagayan and then to the main office of COMELEC in Manila,
for approval.

Acting on the petition, Deputy Executive Director for Operations Pio Jose
Joson submitted to the COMELEC En Banc, a Memorandum4 dated
October 8, 1996 recommending approval of the petition for recall filed by
private respondent and its signing by other qualified voters in order to
garner at least 25% of the total number of registered voters as required by
Section 69(d) of the Local Government Code of 1991.

In turn acting on the abovementioned Memorandum of Deputy Executive

Director Joson, the COMELEC en banc issued the herein assailed
Resolution No. 96-2951.

Petitioner now attacks the aforementioned resolution as being

unconstitutional and therefore invalid, on two main grounds: (1) that the
resolution approved the Petition for Recall albeit same was signed by just
one person in violation of the statutory 25% minimum requirement as to the
number of signatures supporting any petition for recall; and (2) that the
resolution scheduled the recall election within one (1) year from the May 12,
1997 Barangay Elections.

In at least three (3) urgent motions, private respondent has sought the lifting
of the Temporary Restraining Order issued last October 25, 1996 on the
twin grounds (1) that the issue of the one-year bar on recall elections has
been resolved in the case of Paras v. COMELEC5, promulgated on
November 4, 1996; and (2) that the procedure prescribed by Resolution No.
96-2951 involving petition signing upon initiation of even just one person, is
no different from that provided for in COMELEC Resolution No. 2272 which
was upheld as constitutional in the 1991 cases of Sanchez, et
al. v. COMELEC6 and Evardone v. COMELEC7.

Private respondent is correct in saying that in the light of our

pronouncement in Paras v. COMELEC8, the recall election scheduled on
December 2, 1996 in the instant case cannot be said to be barred by the
May 12, 1997 Barangay Elections. In construing the meaning of the term,
"regular local election" in Section 74 of the Local Government Code of 1991
which provides that "no recall shall take place within one (1) year . . .
 340

immediately preceding a regular local election," we ruled that for the time
bar to apply, the approaching regular local election must be one where the
position of the official to be recalled, is to be actually contested and filled by
the electorate. Thus, in the instant case where the time bar is being invoked
by petitioner mayor in view of the approaching Barangay Elections in May
1997, there can be no application of the one year bar, hence no invalidity
may be ascribed to Resolution No. 96-2951 on this ground.

We, however, find petitioner's second ground to be impressed with merit.

Before the enactment of the 1991 Local Government Code, the recall of
public officials voted for in popular elections, was governed by Sections 54
to 59 of Batas Pambansa Blg. 337, otherwise known as the Local
Government Code of 1983. Pursuant to Section 59 thereof, which states
that "the Commission on Elections shall conduct and supervise the process
of and election on recall . . . and, in pursuance thereof, promulgate the
necessary rules and regulations," the COMELEC promulgated Resolution
No. 2272 Sections 4 and 5 of which provide as follows:

Sec. 4. How instituted. — The recall of an elective provincial, city

or municipal official shall be commenced by the filing of a duly
verified notice of recall containing the address and precinct
number of the voter filing the notice, and the name of the official
sought to be recalled, his position, and the ground(s) for the
recall. Each notice shall refer to only one official.

The notice shall be filed in triplicate with the local Election

Registrar if the recall involves a city or municipal official, or with
the Provincial Election Supervisor if it involves a provincial official,
one copy of which shall be posted upon receipt thereof on the
bulletin board in the city/municipal hall.

If the recall involves a provincial official, two additional copies of

the notice shall also be furnished by the voter filing the notice to
the Election Registrar of each city and municipality in the
province, one copy of which shall be posted upon receipt thereof
on the bulletin board in the city/municipal hall.

In every case, the voter filing the notice of recall shall furnish a
copy thereof to the official sought to be recalled, the Commission
on Elections in Manila and the Election Records and Statistics
Department of the Commission.

Sec. 5. Schedule and place of signing of the petition. — The

Election Registrar shall submit to the Commission on Elections,
not later than ten days from filing of the notice of recall, the
 341

schedule of the signing of the petition to recall for approval and

funding . . .9

In the case of Sanchez v. COMELEC 10, petitioners therein contended that

the aforegoing "Resolution No. 2272 is unconstitutional there being no
legislative enactment yet on [the] mechanism of recall as mandated under
Sec. 3, Art. X of the Constitution". 11 It is true, as private respondent
asseverates, that we upheld the constitutionality of Resolution No. 2272, but
not because we found nothing constitutionally infirm about the procedure of
allowing the initiatory recall petition to be filed by only one person. The issue
in Sanchez was not this questioned procedure but the legal basis for the
exercise by the COMELEC of its rule-making power in the alleged absence
of a grant of such power by an enabling statute on recall. Thus we ruled:

While it is true that Sec. 3, Art. X of the Constitution mandates the

Congress to enact a local government code providing among
others for an effective mechanism of recall, nothing in said
provision could be inferred the repeal of BP 337, the local
government code existing prior to the adoption of the 1987
Constitution. Sec. 3, Art. X of the Constitution merely provides
that the local government code to be enacted by Congress shall
be "more responsive" than the one existing at present. Until such
time that a more responsive and effective local government code
is enacted, the present code shall remain in full force and effect.
Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees,
executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.

Considering that the present local government code (BP 337) is

still in effect, respondent COMELEC's promulgation of Resolution
No. 2272 is therefore valid and constitutional, the same having
been issued pursuant to Sec. 59 of BP 337. It reads:

Sec. 59. Supervision by the Commission on Elections. — The

Commission on Elections shall conduct and supervise the
process of and election on recall . . . and, in pursuance thereof,
promulgate the necessary rules and regulations. 12

We reiterated the foregoing ruling in the case of Evardone v.

COMELEC 13 in this wise:

Article XVIII, Section 3 of the 1987 Constitution expressly

provides that all existing laws not inconsistent with the 1987
Constitution shall remain operative, until amended, repealed or
revoked. Republic Act No. 7160 providing for the Local
 342

Government Code of 1991, approved by the President on 10

October 1991, specifically repeals B.P. Blg. 337 as provided in
Sec. 534, Title Four of said Act. But the Local Government Code
of 1991 will take effect only on 1 January 1992 and therefore the
old Local Government Code (B.P. Blg. 337) is still the law
applicable to the present case.

xxx xxx xxx

Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the

mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct and
supervise the process of and election on recall and in the exercise
of such powers, promulgate the necessary rules and regulations. .
. . Thus, pursuant to the rule-making power vested in respondent
COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by

respondent COMELEC is valid and constitutional. Consequently,
the respondent COMELEC had the authority to approve the
petition for recall and set the date for the signing of said
petition. 14

In Sanchez and Evardone, the COMELEC-prescribed procedure of (1)

allowing the recall petition to be filed by at least one person or by less than
25% of the total number of registered voters and then (2) inviting voters to
sign said petition on a date set for that purpose, was never put to issue. As
this is the crux of the present constitutional challenge, the proper time has
come for this court to issue a definitive ruling on the matter.

Apropos for starters is the following chronicle of the evolution of the

mechanism of recall as a mode of removing a public officer by direct action
of the people, essayed in the case of Garcia v. COMELEC 15:

Recall is a mode of removal of a public officer by the people

before the end of his term of office. The people's prerogative to
remove a public officer is an incident of their sovereign power and
in the absence of constitutional restraint, the power is implied in
all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not
undeservedly, it is frequently described as a fundamental right of
the people in a representative democracy.

Recall as a mode of removal of elective local officials made its

maiden appearance in section 2 of Article XI entitled Local
Government, viz.:
 343

Sec. 2. The Batasang Pambansa shall enact a local

government code which may not thereafter be
amended except by a majority vote of all its Members,
defining a more responsive and accountable local
government structure with an effective system of recall .
..

The Batasang Pambansa then enacted BP 337 entitled, "The

Local Government Code of 1983. Section 54 of its Chapter 3
provided only one mode of initiating the recall elections of local
election officials, i.e., by petition of at least twenty-five percent
(25%) of the total number of registered voters in the local
government unit concerned . . . .

Our legal history does not reveal any instance when this power of
recall as provided by BP 337 was exercised by our people.

In February, 1986, however, our people more than exercised their

right of recall for they resorted to revolution and they booted out of
office the highest elective officials of the land. The successful use
of people power to remove public officials who have forfeited the
trust of the electorate led to its firm institutionalization of the 1987
Constitution. Its Article XIII expressly recognized the Role and
Rights of People's Organizations . . . .

Section 3 of its Article X also reiterated the mandate for Congress

to enact a local government code which "shall provide for a more
responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of
recall, initiative and referendum . . . . In response to this
constitutional call, Congress enacted R.A. 7160, otherwise known
as the Local Government Code of 1991, which took effect on
January 1, 1992." 16

Section 69 (d) of the Local Government Code of 1991 expressly provides

that "recall of any elective . . . municipal . . . official may also be validly
initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was elected".
The law is plain and unequivocal as to what initiates recall proceedings: only
a petition of at least 25% of the total number of registered voters, may
validly initiate recall proceedings. We take careful note of the phrase,
"petition of at least twenty-five percent (25%)" and point out that the law
does not state that the petition must be signed by at least 25% of the
registered voters; rather, the petition must be "of" or by, at least 25% of the
registered voters, i.e., the petition must be filed, not by one person only, but
 344

by at least 25% of the total number of registered voters. This is

understandable, since the signing of the petition is statutorily required to be
undertaken "before the election registrar or his representative, and in the
presence of a representative of the official sought to be recalled, and in a
public place in the . . . municipality . . . " 17. Hence, while the initiatory recall
petition may not yet contain the signatures of at least 25% of the total
number of registered voters, the petition must contain the names of at least
25% of the total number of registered voters in whose behalf only one
person may sign the petition in the meantime.

We cannot sanction the procedure of the filing of the recall petition by a

number of people less than the foregoing 25% statutory requirement, much
less, the filing thereof by just one person, as in the instant case, since this is
indubitably violative of clear and categorical provisions of subsisting law.

Our legislators did not peg the voter requirement at 25% out of caprice or in
a vacuum. They knew that this is the requirement under a majority of the
constitutions and recall statutes in various American states to the same
extent that they were aware of the rationale therefor. While recall was
intended to be an effective and speedy remedy to remove an official who is
not giving satisfaction to the electorate regardless of whether or not he is
discharging his full duty to the best of his ability and as his conscience
dictates 18 it is a power granted to the people who, in concert, desire to
change their leaders for reasons only they, as a collective, can justify. In
other words, recall must be pursued by the people, not just by one
disgruntled loser in the elections or a small percentage of disenchanted
electors. Otherwise, its purposes as a direct remedy of the people shall be
defeated by the ill motives of a few among them whose selfish resort to
recall would destabilize the community and seriously disrupt the running of
government.

A scrutiny of the rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes,
unmistakably reveals the vigilance of lawmakers against the abuse of the
power of recall. For instance, the Supreme Court of Illinois held in the case
of In Re Bower 19 that:

[t]he only logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is
to prevent premature action on their part in voting to remove a
newly elected official before having had sufficient time to evaluate
the soundness of his political policies and decisions. We view the
statutory provision requiring the number of petition signers to
equal at least 45% of the total votes case in the last general
election for mayor as a further attempt to insure that an official will
 345

not have to defend his policies against frivolous attacks launched

by a small percentage of disenchanted electors. 20

Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen, v. City of Boulder 21 that:

[t]he framers, by requiring that a recall petition contain the

signatures of at least 25% of all votes cast in the last election for
all candidates for the position which the person sought to be
recalled occupies, assured that a recall election will not be held in
response to the wishes of a small and unrepresentative minority.
However, once at least 25% of the electorate have expressed
their dissatisfaction, the constitution reserves the recall power to
the will of the electorate. 22

And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan

echoed the foregoing posturings in this wise:

Much of what has been said to justify a limit upon recall clearly
not provided or contemplated by the Constitution has revealed
fears about an irresponsible electorate . . . . A much cited
Nebraska case pertaining to a Nebraska recall statute provides
some answers which are equally applicable to the Michigan
constitutional right of recall:

. . . Doubtless the provision requiring 30 per cent of the

electors to sign the petition before the council [is]
compelled to act was designed to avoid such a
contingency. The Legislature apparently assumed that
nearly one-third of the electorate would not entail upon
the taxpayers the cost of an election unless the charges
made approved themselves to their understanding and
they were seriously dissatisfied with the services of the
incumbent of the office. 24

In the instant case, this court is confronted with a procedure that is

unabashedly repugnant to the applicable law and no less such to the spirit
underlying that law. Private respondent who is a lawyer, knows that Section
69 (d) of the Local Government Code plainly provides that recall is validly
initiated by a petition of 25% of the total number of registered voters.
Notwithstanding such awareness, private respondent proceeded to file the
petition for recall with only herself as the filer and initiator. She claims in her
petition that she has, together with many others in Tumauini, Isabela, lost
confidence in the leadership of petitioner. But the petition does not bear the
names of all these other citizens of Tumauini who have reportedly also
become anxious to oust petitioner from the post of mayor. There is no doubt
 346

that private respondent is truly earnest in her cause, and the very fact that
she affixed her name in the petition shows that she claims responsibility for
the seeming affront to petitioner's continuance in office. But the same
cannot be said of all the other people whom private respondent claims to
have sentiments similar to hers. While the people are vested with the power
to recall their elected officials, the same power is accompanied by the
concomitant responsibility to see through all the consequences of the
exercise of such power, including rising above anonymity, confronting the
official sought to be recalled, his family, his friends, and his supporters, and
seeing the recall election to its ultimate end. The procedure of allowing just
one person to file the initiatory recall petition and then setting a date for the
signing of the petition, which amounts to inviting and courting the public
which may have not, in the first place, even entertained any displeasure in
the performance of the official sought to be recalled, is not only violative of
statutory law but also tainted with an attempt to go around the law. We can
not and must not, under any and all circumstances, countenance a
circumvention of the explicit 25% minimum voter requirement in the initiation
of the recall process.

WHEREFORE, premises considered, the PETITION FOR CERTIORARI is

hereby GRANTED. COMELEC Resolution No. 96-2951 is hereby
DECLARED NULL and VOID and accordingly SET ASIDE.

The RESTRAINING ORDER heretofore issued is hereby made permanent.

Costs against private respondent.

SO ORDERED.