Cayetano v. Monsod G.R. Facts: No. 100113, September 3, 1991 At this point, it might be helpful to define private practice.

The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneys called "associates."

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June confirmed COMELEC. the same COMELEC.

5, 1991, the Commission on Appointments the nomination of Monsod as Chairman of the On June 18, 1991, he took his oath of office. On day, he assumed office as Chairman of the

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. Issue: Whether the appointment of Chairman Monsod of Comelec violates Section 1 (1), Article IX-C of the 1987 Constitution? Held: The 1987 Constitution provides in Section 1 (1), Article IX-C, that there shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.

Hence, the Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Besides in the leading case of Luego v. Civil Service Commission, he Court said that, Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years.

Cayetano v. Monsod FACTS Monsod was nominated by President Aquino to the position of Chairman of the COMELEC on April 25, 1991. Cayetano opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. Challenging the validity of the confirmation by the Commission on Appointments of Monsods nomination, petitioner filed a petition for Certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void because Monsod did not meet the requirement of having practiced law for the last ten years. ISSUE: Whether or not Monsod satisfies the requirement of the position of Chairman of the COMELEC. HELD: The practice of law is not limited to the conduct of cases in court. A person is also considered to be in the practice of law when he: . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. Atty. Monsods past work experiences as a lawyer-economist, a lawyer-manager, a lawyerentrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years.

Facts:

- President Corazon Aquino Appointed Christian Monsod as the chairman of COMELEC. - Renato Cayetano opposed the nomination because according to him, the respondent fall short of the ten year requirement for the position. - The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) - June 5, 1991: COA approved the appointment. - June 18, 1991: Monsod took his oath and assumed office. - Petitioner prayed for certiorari and prohibition against Monsod. Issue: Whether or not Monsod is engaged in the practice of law for more than ten years. Held: Atty. Monsods past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years. The Commission on the basis of evidence submitted doling the public hearings on Monsods confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commissions judgment. In the instant case, there is no occasion for the exercise of the Courts corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. The practice of law is not limited to the conduct of cases in court.

RENATO L. CAYETANO vs. CHRISTIAN September 3, 1991 | G.R. No. 100113

MONSOD

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.

CAYETANO VS. MONSOD comelec practice of law

The practice of law is not limited to the conduct of cases in court. A person is also considered to be in the practice of law when he for valuable consideration engages in the business of advising persons as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective before any court, commission, referee, board, body committee, etc, and in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. As long as the work done involves the determination by the trained legal mind of the legal effect of facts and conditions, then it is a practice of law.

Christian Monsod was nominated by President Cory as Chairman of Comelec. Cayetano opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least 10 years. According to the Consti, members of Comelec must have been engaged in the practice of law for at least 10 years The CA nevertheless confirmed the nomination of Monsod. He took his oath of office and assumed office as Chair. Cayetano, as citizen and taxpayer, filed a petition for Prohibition, praying tha the confirmation and appointment of Monsod be declared null and void.

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perform the acts which are characteristics of the profession. Generaly, the practice of law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill.

PRIVATE PRACTICE = means an individual or organization (firm) engaged in the business of delivering legal services. But most lawyers do not only spend time in litigation or courtrooms. Substantially more legal work is transacted in law offices than in courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time business counseling rather than trying cases.

ISSUE: Whether Monsod possessed the qualification that he had engaged in the practice of law for at least 10 years? Background of Atty Monsod: SC: YES. The practice of law is defined as the rendition of services requiring the knowledge and application of legal principles and techniques to serve the interest of another with his consent. It is not limited to appearing in court, or advising or assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. After graduating from UP College of Law, he worked in the law office of his father. He then worked for the World Bank as operations officer in Costa Rica y Panama. After returning to the Philippines, he worked with Meralco, served as CEO of bank, and subsequently of a business conglomerate. In 1986, he has rendered services to various companies as a legal and economic consultant or adviser. He was also Sec-Gen and Chairman of Namfrel, and in fact appeared before the Comelec during the hearing for accreditation. He became a member of the Davide Commission, a quasi-judicial body investigating on the coup detats. He was a member of the Con-Com, and Chairman of its Committee of Accountability of Public Officers.

Interpreted in the light of the modern concept of law practice, and taking into account the liberal construction of the Constitution, Atty Monsods past experience as lawyereconomist, lawyer-manager, lawyer-entrepreneur, lawyernegotiator, lawyer-legislator, verily more than satisfy the constitutional requirement. He has engaged in the practice of law for at least 10 years.

same term of seven years. They took their oaths of office for a second time. The Office of the President transmitted their appointments to the Commission on Appointments for confirmation. Congress adjourned before the Commission on Appointments could act on their appointments. In his capacity as Comelec Chair, Benipayo issued a Memorandum, reassigning Matibag to the from the Education Department to the Law Department

Padilla Dissenting: Practice of law is commonly understood as actual performance or actual application of knowledge as distinguished from mere possession of knowledge. It connotes active, habitual, repeated or customary action. It would be like a doctor who is employed and habitually performing the tasks of a nurse, he cannot be said to be in the practice of medicine. Just as a CPA who works as a clerk, cannot be said to be practicing his profession as an accountant. In the same way, a lawyer who is employed as a business executive or corporate manager, other than as head or attorney of the legal department, cannot be said to be in the practice of law. Gutierrez Dissenting: To be engaged in the practice of law requires committed participation in something which is the result of ones decisive choice. It means that one is occupied and involved in an enterprise, one is obliged or pledged to carry it out with an intent and attention. The practice envisioned is active and regular, not isolated, occasional. Seasonal, intermittent, or extemporaneous. MATIBAG VS. BENIPAYO comelec temporary appointments President GMA appointed, ad interim, Benipayo as COMELEC 3 4 5 Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. They all took their oath of office and assumed the positions. The Office of the President submitted to the Commission on Appointments the ad interim appointments of Benipayo, Borra and Tuason for 6 confirmation. However, the Commission on Appointments did not act on said appointments. President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the

Matibag sought reconsideration, arguing that transfer and detail of employees are prohibited during the election period, both by the Election Code and a Civil Service Memorandum Matibag filed an administrative and criminal case against Benipayo. Matibag also questioned the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution. Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments,

his ad interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character. ISSUES: Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution; Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution; SC: 1. MATIBAG IS WRONG. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.

appointment of a by-passed appointee. Thus, a by-passed appointment can be considered again if the President renews the appointment. In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments." The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years.

2. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim

Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven

years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason.

The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments. In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years.

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments.

As to the transfer of Matibag COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC

personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code.

5. OIC of COMELECs Finance Services Department acting in excess jurisdiction

Matibags Argument: 1. Failure to consult for reassignment 2. Civil Service Commission Memorandum Circular No 7; transferring and detailing employees are prohibited during the election period beginning January 2 until June 13, 2001 3. Reassignment violated Sec 261 of the Omnibus Election Code, COMELEC Resolution No. 3258 4. Ad interim appointments of Benipayo, Bora and Tuason violated the constitutional provisions on the independence of the COMELEC 5. Illegal removal or reassignment 6. Challenges the designation of Cinco 7. Questions the disbursement made by COMELEC

Matibag vs Benipayo GR No. 149036 April 2, 2002 Maria J. Angelina G. Matibag questions the constitutionality of the appointment by President Arroyo of Benipayo (Chairman of the Commission on Elections), and Bora and Tuason (COMELEC Commissioners). She questions the legality of appointment by Benipayo of Velma J. Cinco as Director IV of the Comelecs EID and reassigning her to the Law department.

8. No ad interim appointment to the COMELEC or to Civil Service Commission and COA 9. Sec 1 (2) of Article IX-C; an ad interim appointee cannot assume office until confirmed by the Commission on Appointments

Benipayos Argument: 1. Comelec Resolution No. 3300 2. Petitioner does not have personal interest, not directly injured 3. Failure to question constitutionality of ad interim appointments at the earliest opportunity. She filed only after third time of reappointments 4. Ad interim is not the lis mota because the real issue is the legality of petitioners reassignment. Rules of Court:

Issues: 1. Instant petition satisfies all requirements 2. Assumption of office by Benipayo, Bora and Tuason; ad interim appointments amounts to a temporary appointment prohibited by Sec 1 (2), Article IX-C of the Constitution 3. Renewal of ad interim violated the prohibition on reappointment under Sec 1 (2), Article IX-C of the Constitution 4. Benipayos removal of petitioner is illegal

1. Real issue is whether or not Benipayo is the lawful Chairman of the Comelec 2. Petitioner has a personal and material stake.

3. It is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest point. The earliest opportunity to raise a constitutional issue is to raise it in the pleading. 4. Questioned the constitutionality of the ad interim appointments which is the earliest opportunity for pleading the constitutional issue before a competent body. 5. Ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn. It is not the nature of appointment but the manner on which appointment was made. It will avoid interruptions that would result to prolonged vacancies. It is limited the evil sought to be avoided. 6. Termination of Ad interim appointment (Sword of Damocles); (1) disapproval (2) recess 7. Two modes of appointment: (1) in session (2) in recess 8. By-passed appointments (1) lack of time/failure of the Commission on Appointments to organize, (2) subject of reconsideration, (3) can be revived since there is no final disapproval 9. Four situations in for a term of seven years without replacement: (1) serves his full seven-year term, (2) serves a part of his term and then resigns before his seven-year term, (3) served the unexpired term of someone who died or resigned, (4) served a term of less than seven years, and a vacancy arises from death or resignation. Not one of the four situation applies to the case of Benipayo, Borra or Tuason 10. Reappointment cannot be applied; (1) appointed by president, (2) confirmed by Commission on Appointments 11. Without reappointment means: (first phrase) prohibits reappointment of any person previously appointed for a term of seven years (second phrase) prohibits reappointment of any person previously appointed for a term of 5 or 3 years pursuant to the first set of appointees 12. Reasons for prohibition of reappointments: (1) prevent second appointment (2) not serve beyond the fixed term 13. Two important amendments: (1) requiring the consent by Commission of Appointments (2) prohibition on serving beyond the fixed term of 7 years 14. Twin Prohibition (ironclad): (1) prohibition of reappointments (2) prohibition of temporary or acting appointments

15. Third issue not violation because the previous appointments were not confirmed by the Commission on Appointments. 16. Benipayo is the de jure COMELEC Chairman. He is not required by law to secure the approval of the COMELEC en banc. 17. The petitioner is acting only temporary because a permanent appointment can be issued only upon meeting all the requirements. COMELEC Resolution No. 3300 refers only to COMELEC field personnel not to head office personnel. PANGILINAN VS. COMELEC jurisdiction of comelec

Kiko Pangilinan and Sonny Belmonte were both candidates th for congressman in the 4 District of QC during the 1992 elections. Cadano, as registered voter, filed a petition for disqualification against Belmonte, for allegedly violating Sec 68 of the Omnibus Election Code, by giving money and other material consideration to influence, induce or corrupt the voters. (that Belmonte gave sack of rice, medicine, P5000 cash, free trip for 2 to HKG) Kiko and Cadano filed an urgent motion to suspend the canvassing and/or proclamation of Belmonte, so that their petition for disqualification would not become moot and academic. During the Canvass, Kiko objected to over 120 election returns being canvassed, alleging that they were tampered, altered or spurious. The City Board of Canvassers overruled the objections of Kiko. The reason was that under Sec 15 of Ra 7166, preproclamation controversies are not allowed in the election of Congressmen. Thus the canvassing continued. Thus, Kiko assailed the constitutionality of RA 7166, disallowing pre-proclamation controversies in the election of Congressmen. Kiko argues that this is violative of Sec 3, Art IX-C of the Constitution which vests in the Comelec the power to hear and decide pre-proclamation controversies without distinction as to whether the controversy involved the election of Congressmen, or local elective officials. According to him, the phrase pre-proclamation controversies in Art IX-

C embraces all kinds of pre-proc controversies such as those of the election of Congressmen.

Petitioners claim that these decisions were in gadalej, and that the Comelec sitting en banc, took cognizance of the cases without first referring them to any of its divisions. Petitioners claim that under Sec 3, Art IX-C, election cases shall be heard and decided in divisions, provided hat MR of the decisions shall be decided by the Commission en banc.

ISSUE; Does the Comelec have jurisdiction over preproclamation controversies for the election of Congressmen?

SC: NO JURISDICTION. Sec 2 of Art IX-C vests in the Comelec exclusive original jurisdiction over all contests relating to the election, returns, and qualifications of all elective REGIONAL, PROVINCIAL, AND CITY OFFICIALS. It has no jurisdiction over contests relating to the election, returns, and qualifications of Members of the House. Under Article VI, it is the HRET who is the sole judge of all contests relating to election, returns and qualifications of Members of the House.

ISSUE: Whether the pre-proclamation controversies should be decided first by division

SC: It is clear from the provision of the constitution that election cases included pre-proclamation controversies, and all such cases must first be heard and decided by a Division of the Comelec. The Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance.

Thus the phrase pre-proc controversies in Art IX-C, should be construed as referring only to those falling within the exclusive and original jurisdiction of Comelec, that is, election pertaining to regional, provincial and city officials.

RA 7166 is still VALID.

Under the Comelec Rules of Procedure, with respect to preproc controversies, the 2 Divisions of the Comelec are vested with the authority to hear and decide those special cases. It is recognized that the appeals from the rulings of the Board of Canvassers are cognizable by any of the Divisions, to which they are assigned, and not by the Commission en banc.

Since Sonny Belmonte has already been proclaimed winner, and has taken oath and assumed office, the remedy of Kiko was to file an electoral protest with the HRET. SARMIENTO VS. COMELEC comelec pre-proc controversies/ division vs. en banc

A MR on the decision of the Division may be filed within 5 days from its promulgation, after which the clerk of court will notify the Presiding Commissioner, who shall certify the case to the Comelec En Banc.

This is a consolidated special civil action for certiorari seeking to set aside the various Comelec Resolutions in special cases. Among the resolutions were: Ordering the exclusion of election returns from the canvass Dismissing petitioners opposition to the composition of the Board of Canvassers Rejecting the petitioners objection to certain election returns.

Here, the Comelec En Banc acted in gadalej when it resolved the appeals of petitioners in the special cases without first referring them to any of its Divisions. Said resolutions are therefore null and void. Consequently, the appeals are deemed pending before the Commission for proper referral to a Division.

**Note the cases have been rendered moot and academic because RA 7116 provides that all pre-proc controversies pending shall be deemed terminated once the term of office has begun. The term of office involved in the special cases

commenced at noon of June 30, 1992. Thus, the petitions are dismissed.

ATIENZA vs. COMELEC Case Digest ATIENZA vs. COMELEC G.R. No. 108533, Dec. 20 1994

Facts: Private respondent Antonio G. Sia was elected mayor of the Municipality of Madrilejos, Cebu in the 1998 local elections. Following Sias proclamation, petitioner filed an election protest with the Regional Trial Court questioning the results of the elections in a number of precincts in the municipality. Consequently, in the revision ordered by the lower court, petitioner obtained a plurality of 12 votes over the private respondent. The Regional Trial Court rendered its decision declaring petitioner the winner of the municipal elections and ordering the private respondent to reimburse petitioner the amount of P300,856.19 representing petitioners expenses in the election protest. Private respondent appealed. Meanwhile, the Regional trial Court granted petitioners motion for execution pending appeal, which was opposed by respondent. The Comelec issued a preliminary injunction stopping the enforcement of the order of execution. The Comelec, en banc, on April 7, 1992 issued an Order setting aside the preliminary injunction and thereby allowing petitioner to assume as mayor of the Municipality of Madrilejos pending resolution of his appeal. However, following the synchronized elections of May 11, 1992, the Presiding Commissioner of the Comelecs Second Division issued an Order dated July 18, 1992 dismissing petitioners appeal for being moot and academic.

an election protest case to recover actual or compensatory damages in the absence of a law expressly providing for situations allowing for the recovery of the same. This, petitioner has been unable to do. The intent of the legislature to do away with provisions indemnifying the victorious party for expenses incurred in an election contest in the absence of a wrongful act or omission clearly attributable to the losing party cannot be gainsaid in fine, Section 259 of the Omnibus Election Code merely provides for the granting of actual and compensatory damages in accordance with law. The intent, moreover, to do away with such provisions merely recognizes the maxim, settled in law that a wrong without damage or damage without wrong neither constitutes a cause of action nor creates a civil obligation.

Atienza vs. Comelec FACTS: Private respondent Antonio G. Sia was elected mayor of the Municipality of Madrilejos, Cebu in the 1988 local elections obtaining a plurality of 126 votes over his nearest rival, herein petitioner Lou A .Atienza. Following Sia's proclamation by the Municipal Board of Canvassers, petitioner filed an election protest with the Regional Trial Court questioning the results of the elections in a number of precincts in the municipality.

Consequently, in the revision ordered by the lower court, petitionerobtained a total of 2,826 votes, a plurality of 12 votes over theprivate respondent. On April 12, 1989 the Regional Trial Court rendered its decision declaring petitioner the winner of the municipal elections and ordering the private respondent to reimburse petitioner the amountof P300,856.19 representing petitioner's expenses in the election protest. Private respondent appealed the trial court's decision to the COMELEC raising as errors 1) the computation of the number of votes received by the candidates; and 2) the alleged award of "excessive damages" in favor of the petitioner.

Issue: Whether or not the Comelec acted with grave abuse of discretion in reversing the lower courts judgment.

Held: The dismissal of an appeal in an election protest case for having become moot and academic due to the election of new municipal officials referred only to that part of the appealed judgment which was affected by the election and not to that portion relating to the award of damages. However, it would appear virtually impossible for a party in

ISSUE(S)/HELD: The case was docketed and assigned to the COMELEC's Second Division. The COMELEC, en banc , issued an Order setting aside the preliminary injunction and thereby allowing petitioner to assume as mayor of the Municipality of Madrilejos pending resolution of his appeal. Whether the COMELEC acted with grave abuse of discretion when it issued its Resolution of January 28, 1993 reversing the lower court's judgment awarding damages to herein petitioner after it had earlier dismissed for being moot and academic. NO.RATIO: The Omnibus Election Code provides: Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law. Provisions for actual or compensatory damages under the law areembodied in various Civil Code articles allowing claims for damages under specific circumstances. Thus, Article 2176 provides: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault o rnegligence, if there is no pre-existing contractual relation between the parties is called a quasi delict , and is governed by the provisionsof this chapter. Specifically, Article 2199 of the Civil Code mandates that: Except asprovided 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. Second Division ) f o r b e i n g m o o t a n d a c a d e m i c b e c a u s e o f t h e expiration of the term of office of the contested position did not thereby revive the vacated judgment of the Regional Trial Court, said appealed judgment to remain vacated, not having been resolved on the merits by the Commission for or against any of the parties; and the judgment directing the protestee-appellant to reimburse the protestant-appellee the amount of P300,856.19 representing his expenses in the election protest, is hereby REVERSED , said judgment not being in accordance with law in the absence of any evidence of a n y wrongful, or negligent act or omission on the p a r t o f t h e protestee appellant to justify the award. Given this setting, it would appear virtually impossible for a party in an election protest case to recover actual or compensatory damages in the absence of the conditions specified under Articles 2201 and2202 of the Civil Code, or in the absence of a law expressly providingfor situations allowing for the recovery of the same . I t f o l l o w s , naturally, that in most election protest cases where the monetary claim does not hinge on either a contract or quasi -contract or atortious act or omission,

However, following the synchronized elections of May 11, 1992, the Presiding Commissioner of the COMELEC's Second Division issued an Order dated July 18, 1992 dismissing petitioner's appeal for being moot and academic pursuant to the Commission's decision in Resolution No. 2494 declaring the election protest and appeal cases as well as petitions for special relief arising out of the January18, 1988 elections dismissed and terminated as of June 30,1992. On January 28, 1993, respondent Commission en banc released its questioned resolution, the dispositive portion of which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, that the dismissal of the appeal by the Commission(

the claimant must be able to point out to a specific provision of law authorizing a money claim for election protest expenses against the losing party . This, petitioner has been unable to do. Section 259 of the Omnibus Election Code merely provides for the granting of actual and compensatory damages in accordance with l a w . That it was the intent of the legislature to d o a w a y w i t h provisions indemnifying the victorious party for expenses incurred in an election contest in the absence of a wrongful act or omission clearly attributable to the losing party cannot be gainsaid. The intent ,moreover, to do away with such provisions merely recognizes themaxim, settled in law that a wrong without damage or damage without wrong neither constitutes a cause of action nor creates a civil obligation.

Thereafter, Reyes filed a certificate of candidacy with the Comelec but a petition for disqualification was filed against him. Thus, the Comelec canceled Reyess certificate of candidacy. However, the Municipal Board of Canvassers of Bongabong unaware of the disqualification of Reyes by the Comelec, proclaimed him the duly-elected mayor.

The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. Invoking the ruling in the case of Aguinaldo v. Santos, petitioner argues that his election on May 8, 1995 is a bar to his disqualification.

REYES vs. COMELEC G.R. No. 120905, March 7, 1996 FACTS Dr. Manalo filed with the Sangguniang Panlalawigan an administrative complaint against incumbent Mayor Reyes of Bongabong, Oriental Mindoro. It was alleged that Reyes exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market. Also, that certain checks issued to him by the National Reconciliation and Development Program of the DILG were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took 27 heads of cattle from beneficiaries of a cattle dispersal program. The Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office.

Garcia, who obtained the highest number of votes next to Reyes, intervened, contending that because Reyes was disqualified, he was entitled to be proclaimed mayor. The Comelec en banc denied Garcias prayer.

ISSUES: 1. WON the decision of the Sangguniang Panlalawigan is not yet final because he has not been served a copy thereof.

2. WON petitioners reelection rendered the administrative charges against him moot and academic

3. WON the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified.

Reyes filed a petition for certiorari, prohibition and injunction with the RTC of Oriental Mindoro. Later, the Presiding Officer of the Sangguniang Panlalawigan issued an order for Reyes to vacate the position of mayor and to turn over the office to the incumbent vice mayor but he refused to accept the service of the order.

HELD:

1. No. The failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. Repeated attempts had

been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it. Reyess refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.

committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the two Aguinaldo cases.

Petitioner was given sufficient notice of the decision. Rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160 Section 67. But petitioner did not do so. Accordingly, the decision became final 30 days after the first service upon petitioner. Thus, when the elections were held the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the RTC did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding.

The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40 (b) of the Local Government Code, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40 (b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect.

Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner.

Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election.

2. No. Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was

3. The candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among

qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason cannot be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him.

The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, i.e., enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final.

In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect. Rule 13, 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. Hence service was completed when the decision was served upon petitioners counsel in his office in Manila on March 3, 1995.

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, 67. But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner. Maquiling Vs. Comelec

In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995.

On the Selection of the Lawful Mayor of Kauswagan, Lanao del Sur Arnado used his USA passport after his Renunciation of American Citizenship and before he filed his Certificate of Candidacy. This positive act of retraction of his renunciation before the filing of the Certificate of Candidacy renders Arnados Certificate of Candidacy void ab initio.

If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsels refusal to receive it.

Indeed that petitioners counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court was pending. His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.

Therefore, Arnado was never a candidate at any time, and all the votes for him are stray votes. We reiterate our ruling in Jalosjos v. COMELEC6 on this matter

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such noncandidate are stray votes and should not be counted. Thus, such noncandidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat

one or more valid certificates of candidacy for the same position

Garnering the highest number of votes for an elective position does not cure this defect. l\1aquiling, the alleged "second placer," should be proclaimed Mayor because Amado's ce11iticate of candidacy was void ah initio. Maquiling is the qualified candidate who actually garnered the highest number of votes for the position of Mayor.

MISON VS. COA coa decisions

Mison was the Commissioner of Customs. He declared the seizure of a Japanese vessel, MV Hyojin as invalid. He thus ordered the release of said vessel. However, the vessel was not released. It sank while in the custody of the Bureau of Customs Chan then filed a claim with the COA for the value of the sunken vessel. ($50,000) By authority of the Acting Chair, Mr. Espiritu (who was the Manager of the Technical Services), denied the claim. The claimants thus questioned the authority of Mr. Espiritu in denying the claim. Thru their lawyer Atty David, moved for the reconsideration, writing a letter to the Acting COA Chair Tantuico. He argued that the decision in the case was rendered only by the Manager, and not by the Acting Chairman, much less the COA itself. He contends that the decision is void because the matter should be acted upon only by the COA duly constituted (ie, by the Chair and the 2 Comm.) (at this time, the COA is not yet fully constituted) Acting COA Chair Tantuico denied the claim as well. Tantuico adopted the Espiritu decision.

Again, Atty David moved for reconsideration, now arguing that Acting Chair Tantuico also had no authority to act on the case. He requested that the same be submitted for resolution by the COA itself, after the appointment of 2 commissioners. Later, the COA was finally fully constituted. Atty David still wrote another letter, for the payment of their claims. In a 4th Indorsement, Chairman Domingo, acting for the Commission, reconsidered the decision of Acting Chairman Tantuico. Chairman Domingo granted the claim. He forwarded the decision to grant the claim to Mison. Mison now sought clarification on the legal implication of the th 4 Indorsement. He contends that the first COA decision, although signed only by a Manger Espiritu, was ratified or made valid because it was adopted in toto as a decision of the COA in the subsequent letters.

designated and no other Commissioner had been appointed.. what would happen to those decisions?)

SC: The principle should logically apply only to those particular instances where there was a timely and specific challenge to the authority of the Acting COA chair in the exercise of adjudication. It should not affect all other cases where the parties expressly or by implication accepted the adjudicative authority of the Acting COA Chair.

(Mison further argued that Atty David already waived the objection on lack of collegiality when he failed to raise it in his MR. His MR merely reiterated the arguments on the merits of the claim, but did not raise the ground of lack of collegiality)

SC: INVALID. In the first place, the decision by the Manager Espiritu was void ab initio. As Manager of the Technical Services, Mr. Espiritu obviously had no power to render or promulgate a decision of or for the Commission. Even the Chairman alone, had not that power. As clearly set out in the Constitution, the power was lodged in the COA, composed of a Chairman and 2 Commissioners, to decide any case brought before it.

SC: No waiver. Atty David in fact reiterated his challenge to Tantuicos authority in his subsequent letters. He insisted that the same should be submitted for resolution by the COA, only after full constitution of the COA.

Also, it must be made clear that the Espiritu decision was not merely technically invalid for lack of collegiality. IT WAS SUBSTANTIVELY VOID AB INITIO. It was rendered without jurisdiction, Hence, it has an essential and inherent defect which could not have been waived.

Hence, the adoption or ratification of the Espiritu decision by Acting Chair Tantuico was inconsequential. Ratification cannot validate an act void ab initio because it was done absolutely without authority. The act has to be done anew by the person or entity duly endowed with authority to do so.

(Finally, Mison argued that the 4 INdorsement should also be invalid because COA Chair Domingo was the only one who signed it).

th

Further, no proper ratification or validation could have been effected by Acting Chair Tantuico, since he was not the Commission, and he himself had no power to decide any case brought before the COA. That power, is lodged on the in the COA itself, a collegial body.

SC: 4 INdorsement VALID. When the 4 Indorsement Decision was rendered, there were already 2 Commissioners (meaning the COA was fully constituted already), clearly a number sufficient to satisfy the constitutional requirement for collegial action. Even so, the th 4 Indorsement made it clear that it was the Decision of the Commission, when Chairman Domingo placed FOR THE COMMISSION in the decision. Records also show that the other commissioners concurred in the decision.
th

th

(it was argued that how about the hundreds of decisions signed by Acting Chair Tantuico alone since at that time there was an interval during which only he had been

Decision:In the first place the "Espiritu decision" was void Mison vs COA Section 1: Purpose, composition, appointmentDoctrine: COA as a collegial bodyCase: Mison v COA ab initio. As manager of theCOA Technical Service Office, Mr. Espiritu obviously had no power whatever to renderand promulgate a decision of or for the Commission. Indeed, even the Chairman, alone,had not that power. As clearly set out in the Constitution then in force, the power waslodged in the Commission on Audit, "composed of a Chairman and woCommissioners." 20 It was the Commission, as a collegial body, which then as now, hadthe jurisdiction to "(d)ecide any case brought before it within sixty days from the date ofits submission for resolution," subject to review by the Supreme Court on certiorari 21 Hence, the adoption or ratification of the Espiritu decision by the Acting COAChairman was inconsequential. Ratification cannot validate an act void ab initio because done absolutely without authority. The act has to be done anew by the personor entity duly endowed with authority to do so.Moreover, even conceding the contrary, no proper ratification or validation couldhave been effected by the Acting Chairman since he was not the Commission, and hehimself had no power to decide any case brought before the Commission, that power, torepeat, being lodged only in the Commission itself, as a collegial body. it must be madeclear that the Espiritu Decision was not merely "technically invalid," as the petitionerdescribes it. It was substantively void ab initio, because rendered without jurisdiction. Ithad an essential inherent defect that could not be cured or waived. PHIIL OPERATIONS VS. AUDITOR GENERAL Coa accounts and money claims PhilOps entered into a barter agreement with the Bureau of Prisons, where it agreed to deliver to the Bureau a sawmill, complete with diesel engine and a saw, and other accessories. While the Bureau was to deliver 70,000 feet of lumber The receipt that the employee of the Bureau of Prisons issued for the items disclosed that there were unsatisfactory conditions on the items (three was no belt in the main saw, broken frames, lack of hooks, no rope cables, worn out rusty, etc)

Facts: The case is about customs case no. 813 where the commissioner of customs,MIson, declaring illegal the seizure by elements of the Philippine Navy of the M/V"Hyojin Maru" a vessel of Japanese registry, and ordered the release of the vessel andits cargo to the claimants, Chan Chiu On and Cheung I.However, the vessel was never released because it sank while in the custody ofthe bureau of customs and it could not be salvaged. The claimants filed a claim with theCommission on Audit for the payment of the vessel.Acting thereon "(b)y authority of the Acting Chairman," Mr. Rogelio B. Espiritu,Manager, Technical Service Office of the COA, denied the claim for the reasons setforth in his registered letter to the claimant's lawyer dated November 3, 1977captioned"Decision No. 77-142." In a letter dated May 10, 1978, claimants counsel, Mr. David replied that said Decision No. 77-142-rendered only by the Manager, Technical Service Office of theCOA, and "not (by) the Acting Chairman, much less . . . the Commission on Audit" was void because the matter could validly be acted upon only by "the Commission onAudit duly constituted, by the appointment and qualification of its Chairman and twoCommissioners," "as specifically provided by Section 2, Article XII-D of the (1973)Constitution. In a 4th Indorsement dated June 22, 1987 addressed "to the Auditor,Bureau of Customs," Chairman Eufemio C. Domingo, acting "FOR THECOMMISSION," reconsidered Decision No. 77-142 of Acting Commissioner of AuditTantuico, supra. He declared that the vessel sank while in illegal custody of the Bureau ofCustoms, which "should have pre-eminently taken adequate measures to preserve" itbut did not.; hence, he declared that "this Commission will interpose no objection" to theinstant claim, subject to the usual auditing and accounting requirements." Petitionerseasonably filed with this Court a petition for certiorari to nullify said COA Decisionspursuant to Section 7, Article IX of the 1987 Constitution.Issues:Whether or not the decision to reverse the Espiritu Decision was proper?

The Bureau of Prisons claim that when the barges were examined, PhilOps were advised verbally about the defects therein, and so were they with respect to the parts of the sawmill when it was found. Around a year later, it became evident that it was not feasible for the Bureau of Prisons to deliver lumber. PhilOps proposed to obtain surplus from the Surplus Property Commission in lieu of the lumber so as to finally liquidate the obligation contracted with the Bureau of Prisons. It turned out however that no equipment could be found in the Commission which could be usable by PhilOps, so it proposed that the corporation be credited with an amount of P70,000 and be allowed to bid in future surplus offerings. PhilOps later filed a claim with the Auditor General. The Bureau of Prisons offered to deliver the first installment of the lumber. But this was rejected by PhilOps on the ground that the offer came too late, and that it demanded payment of cash. The Auditor General denied PhilOps claim for payment. It was mentioned that the Auditor General did not have jurisdiction. PhilOps appealed to the SC. The Auditor General claims that the Commonweal Act 327 which imposed upon the Auditor General the duty of acting and deciding on cases involving the settlement of accounts or claims other than those of accountable officers, does NOT authorize or empower the Auditor General to pass upon the PhilOps claim for P105,000 because the term claims used in the said Act can refer to no other than liquidated claims. (In short, the Auditor General claims that it has jurisdiction only over liquidated claims) PhilOps on the other hand contend that the Auditor General had been granted additional power upon any money claim involving liability arising from contract which could serve as a basis for civil action between the parties. It also argued that assuming that the Auditor General has jurisdiction only over liquidated claims, the claim of P70,000 should be considered liquidated, since this has been accepted by both parties. SC: AUDITOR GENERAL HAS NO JURDXN FOR UNLIQUIDATED CLAIMS. The reason for denying jurisdiction over unliquidated claims for breach of contract is because these claims often involve a broad filed of investigation and require the application of

judgment and discretion upon the measure of damages and the weight of conflicting evidence. The term used in the Commonwealth Act is moneyed claims or only liquidated claims. An account is something which may be adjusted or liquidated by arithmetic process. But Treasury officials cannot pass upon accounts where the amount is not the result of a numerical computation. Claims for unliquidated damages require for their settlement the application of the qualities of judgment and discretion. They are frequently sustained by extraneous proof. The results to be reached in such cases is not merely an account and are not committed by law to the contro and decision of Treasury officers.

Another reason why the AG cannot entertain unliquidated damages is because the liability or non-liability of the government is put in issue. In these cases, the most important question to be deterined are judicial in nature, involving the examination of evide and the use of judicial discretion. An administrative officer like the AG cannot assume this jurisdiction, because it would amount to an illegal act, a delegation of judicial power to an executive officer. An examination of the provisions of the Constitution fails to disclose any power vested in or granted to the AG to consider these claims. All that is vested in the AG is the SETTLEMENT OF ACCOUNTS (see earlier definition of Accounts). INSURANCE COMPANY VS. REPUBLIC money claims The Plaintiff Insurance Company filed an action for recovery of P86,000 the insured value of 82 cartons of goods, allegedly lost in the custody of the carrier, US Lines, or the vessel operator, Luzon Stevedore, or the arrestre operator, the Bureau of Customs (an agency of the Republic) The Republic of the Philippines filed a MTD, claiming the State immunity from suit. CFI denied the MTD. However later, the case was dismissed against the Republic and the Bureau. Plaintiff appealed. ISSUES: Suability of the RP and the BOC

SC: The BOC in operating the arrastre service, does so in the performance of a necessary incident to the prime governmental function of taxation. Thus it is not suable for alleged loses resulting therefrom. Thus, neither is the Republic suable for said activity.

EDILBERTO M. RAMOS, PACIANO CAPALONGAN, VICTORINO REYES, CONSORCIA JOVEN, JOSEFINA COLOMA, JOSE JOAQUIN, petitionersappellants, vs. HON. BENJAMIN H. AQUINO, Provincial Fiscal, Pasig, Rizal, BRIG. GEN. ROMEO ESPINO, AFP, Commanding General, Philippine Army Fort Bonifacio, Rizal, respondents-appellees. A constitutional question with an element of novelty is raised in this appeal from a lower court order dismissing an action for certiorari and prohibition against the then respondent Fiscal of Rizal, Benjamin H. Aquino, to prevent him from conducting a preliminary investigation. It is whether there is an encroachment on the constitutional prerogatives of the Auditor General if, after the final approval of certain vouchers by him without an appeal being made, an inquiry by a provincial fiscal to determine whether criminal liability for malversation through falsification of public, official and commercial documents based thereon could lawfully be conducted. The lower court that a prosecutor could, without offending the constitutional grant of authority to the Auditor General, do so. We therefore affirm. In the certiorari and prohibition proceeding filed with the lower court on June 6, 1967, petitioners, 1 now appellants, assailed the jurisdiction of cases Benjamin Aquino, then Provincial Fiscal of Rizal, to conduct the preliminary investigation of the alleged commission of malversation through falsification of public, official and commercial documents imputed to them by the other respondent, then the Commanding General, Philippine Army, Fort Bonifacio, Rizal, Romeo Espino. The basis for such a motion was that under the Constitution, the Auditor General is not only vested with the duty to examine or audit all expenditures of funds of the Government, but also to audit or investigate and "bring to the attention of the proper administrative officer expenditures of funds or property which in his opinion are irregular, unnecessary, excessive, or extravagant." It is their contention that under the above, it is incumbent on the Auditor General to determine whether criminal responsibility for the anomaly discovered in the courage of his audit or examination of the accounts lies. It was further contended that the decisions of the Auditor-General on the correctness of the vouchers on which the alleged of cases were based having become final and irrevocable, not even the courts could substitute its findings. Otherwise the provision of law that vouchers, claims or accounts "once finally settled shall in no case be opened or reviewed except as herein provided" would be meaningless if the army authorities and respondent Fiscal were permitted to proceed with the preliminary investigation to determine whether criminal case could be filed. 2

ISSUE: It is claimed that the money claims that may be filed with the Auditor General (AG) under Act 3083, are only those which are subject to liquidation by an arithmetic computation and only where the liability of the government is no longer an issue. (a prior case of Tabacos was cited) SC: It is precisely for the AG to determine whether the same claim is tenable or not, and if not, to deny the same. The ruling in the Tabacos case cannot apply in this case, since there, the issue was the offsetting of an unliquidated claim for damages against a specific liquidated debt. The ruling in Tabacos was that offsetting cannot be made. Here, there is no question of offsetting. The only issue was simply that of allowing or disallowing a specific and liquidated claim against the government. Since in the present case, the amount of claim is already fixed and readily determined from the bill of lading and other shipping papers, they can be filed with the AG. Thus, we sustain the power of the Ag to take cognizance of the claim, for if the same be found in order and allowable, the amount recoverable is fixed and liquidated, as determined or readily determinable from the papers and invoices available to him, Stated otherwise, where the existence of a specific and fixed debt is the issue, the AG has the power to act on the claim, but when not only the existence but also the amount of the unfixed and undetermined debt is involved, the AG has no competence to consider such claim.

- in short, the dismissal of the case against the Republic and the BOC was proper because the claim should have been filed with the AG.

Section 2: Power and Functions Examine and audit government revenues Examine and audit government expenditures Doctrine: post-audit authority Case: Blue Bar Coconut G.R. No. L-28594 June 30, 1971

The above legal objections were brought to the attention of the then cases Provincial Fiscal by petitioners in a motion to quash which was denied by him in a resolution of May 23, 1967 on this ground: "The exclusive jurisdiction of the Auditor General on matters now raised by respondents refer to auditorial requirements and approval but not to the criminal

liability, if any, of the persons involved in an alleged irregular or anomalous disbursement of public funds. The authority of the Fiscal to investigate whether a criminal act has been committed or not in the disbursement of public funds, and finally of the Courts to try any person involved in the alleged malversation of public funds is not curtailed or in any way divested by the administrative findings of the Auditor General. To hold otherwise would be to arrogate unto the Office of the Auditor General the power which pertains to the judicial branch of the government." 3 Then came thus petition before the lower court, petitioners praying for a judgment annulling aforesaid resolution of cases Provincial Fiscal denying their motion to quash, rendering judgment that he was without petition to conduct such preliminary investigation and prohibiting him from further proceeding on the matter. 4 On November 2, 1967, there was a motion to dismiss by respondent Provincial Fiscal based on the argument that the amounts subject to the criminal cases were not closed and settled accounts and that even if they were such, respondent Fiscal could still institute the appropriation criminal action, there being no need for a certification by the Auditor General as to any irregularity in the settlement of accounts as an essential element for a criminal prosecution in malversation cases. After an opposition was filed by petitioner to the aforesaid motion to dismiss on November 21, 1967, the lower court, in an order of December 20, 1967, dismissed the petition. In support of such an order, it was set forth in such order of dismissal: "The Provincial Fiscal is only studying whether or not, as complained of, from these accounts or vouchers which have already been passed in audit by the Auditor General or his representatives more than three years ago, there is a crime to be prosecuted in which the petitioners are answerable. 5 It was further emphasized: Were the theory of the petitioners to prevail, then the Auditor General will be arrogating unto himself duties which pertain to the judicial branch of the government. 6 The last ground on which the plea that the prohibition be dismissed was sustained the principle that one "cannot restrain the Fiscal, by means of injunction from prosecuting [this] case ...." 7

accordance with law and administrative regulations" all expenditures of funds or property pertaining to or held in trust by the government as well as the provinces or municipalities thereof. 8 That is one thing. The ascertainment of whether a crime committed and by whom is definitely another. There is thus a manifest failure on the part of appellants to appreciate correctly the constitutional objective in the conferment of authority on the Auditor General. It is based on the fundamental postulate that in the division of powers, the control over the purse remains with the legislative branch. There is the explicit requirement then that there be no expenditure of public founds except in pursuance of an appropriation made by law. 9 There is need, therefore, for an enactment to permit disbursement from the public treasury. Nor does fidelity to this constitutional mandated end there. There must be compliance with the terms of the statute. If it were not so to, the extent that there is a deviation, there is a frustration of the legislative will. It is obvious that Congress itself is not in a position to oversee and supervise the actual release of each and every appropriation. That is where the Auditor General comes in. It is the responsibility of his office to exact obedience to any law that allows the expenditure of public funds. He serves as the necessary check to make certain that no department of the government, especially its main spending arm, the Executive, exceeds the statutory limits of the appropriation to which it is entitled. That is the purpose and end calling for the creation of such an office, certainly not the enforcement of criminal statutes.

The matter was duly elevated on appeal to this Court on January 3, 1968. The brief for petitioners appellants was filed on March 6 of that year. With the submission of the brief for respondents as appellants on May 3, 1968, the appeal was deemed submitted. As set forth at the outset, there is no legal ground for reversing the lower court.

1. Appellants, in their brief, reiterate their principal argument that the order of the lower court dismissing their motion and thus allowing their investigation by cases Fiscal to proceed, did amount to an encroachment on the constitutional prerogatives of the Auditor General. Such a contention lacks merit. It betrays on its face a lack of understanding of the constitutional provision relied upon. The Auditor General, as noted, is vested with the power to examine, audit and settle all accounts pertaining to the revenues and receipts from whatever source, and to audit, in

So it has been made clear by the then Delegate, later President, Manuel Roxas in the Constitutional Convention of 1934. To the question as to the method or means to determine whether public funds are spent in accordance with the congressional will, this was his answer: "The only means provided in our Constitution, as in the constitutions in other countries, is the office of the auditor; therefore, if the auditor is a check on the Executive, it is not wise to make the auditor depend on the Executive. For another ways, the Executive, if he is able to influence the auditor, may spent the proper checking of the expenditures of the public money." 10 For such a dignitary to live up to such grave responsibility, he must, according to Delegate Roxas, be independent, not only of the President but even of Congress, even if he were in a true and vital sense fulfilling a task appertaining to it. Thus, "In the United States while the auditor is appointed by the President with the advice and consent of the United States Senate, the office is kept as an independent office independent [of] the Executive and independent [of] the Legislature, because he has not only to check the accounts of the Executive, but also the accounts of the Legislature ...." 11 It could be that appellants were not completely oblivious to the force of the observations. They therefore did seek to lend plausibility to their contention with reminder that there is likewise included in the constitutional provision in question the task incumbent on the Auditor General to "bring forth the attention of the proper administrative officer expenditures of funds or

property which, in his opinion, are irregular, unnecessary, excessive, or extravagant." From which, by a process of construction rather latitudinarian in character, they would imply that on the Auditor General alone rests the determination of whether or not criminal liability is incurred for any anomaly discovered in the course of his audit or examination. Such a conclusion is at war with the controlling doctrine. As construed in Guevara v. Gimenez, 12 at most such a duty goes no further then requiring him to call the attention of the proper administrative officer of the existence of such a situation but does not even extend to the power "to refuse and disapprove payment of such expenditures, ...." 13 Much less then could it justify the assertion devoid of any legal justification that even, the ascertainment of any possible criminal liability is likewise a part and parcel of such constitutional competence of the Auditor General. How, then, can it be said that their plea is thereby strengthened?

There is likewise an invocation by appellants of alleged statutory support for their untenable view. It is likewise in vain. All that appellants have to go on is the concluding paragraph of section 657 of the Revised Administrative Code: "Accounts once finally settled shall in no case be opened or reviewed except as herein provided." The paragraph immediately preceding should have disabused the minds of appellants of any cause for optimism. All that set it provides for is that in case any settled account "appears to be infected with fraud, collusion or error of calculation or when new and material evidence is discovered, the Auditor General may within three years after original settlement, open such account, and after a reasonable time for his reply or appearance, may certify thereon a new balance." The official given the opportunity for a reply or appearance is the provincial auditor, for under the first paragraph of this particular section, the Auditor General at any time before the expiration of three years and the making of any settlement by a provincial auditor, may, of his own motion, review and revise the same and certify a new balance. Nowhere does it appear that such a statutory grant of authority of the Auditor General to open revised accounts carries with it the power to determine who may be constituted in the event that in the preparation thereof a crime has been committed. The conclusive effect of the finality of his decision on the execution of branch of the government thus relates solely to the administrative aspect of the matter. 14

2. The third assigned error by appellants would find fault with the lower court's reliance on the well-settled doctrine that as a general principle, no action lies to enjoin fiscals from conducting investigations to ascertain whether an offense has been committed. To demonstrate its equally groundless character, it suffices to refer to Ramos v. Torres, 16 dismissing an original action for prohibition instituted, by five of the six petitioners, now appellants, 17 to cut short further proceedings on an information accusing them of malversation through falsification of public and commercial documents. In the opinion of the present Chief Justice, it is emphatically affirmed: "Upon a review of the record, we are satisfied that petitioners herein have not established their right to the writ prayed for. Indeed, it is well-settled that, as a matter of general rule, the writ of prohibition will not issue to restrain criminal prosecution." 18 An excerpt from the opinion of Justice Sanchez in Hernandez v. Albano 19 was then quoted. Thus: "Agreeably to the foregoing, a rule now of long standing and frequent application was formulated that ordinarily criminal prosecution may not be blocked by court prohibition or injunction. Really, if at every turn investigation of a crime will be halted by a court order, the administration of criminal justice will meet with an undue setback. Indeed, the investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in hollow sound rather than as a part and parcel of the machinery of criminal justice." 20 Nor is the accused person thereby left unprotected for, as was noted by the Chief Justice, referring to Gorospe v. Peaflorida, 21 he could defend himself from any possible prosecution by establishing that he did not commit the act charged or that the statute or ordinance on which the prosecution is based is invalid or in the event of conviction, he could appeal. While the general rule admits of exceptions, no showing has been made that petitioners appropriately invoke them. As they failed in their previous action of prohibition in Ramos v. Torres, so they must now.

WHEREFORE, the appealed order of the lower court of December 20, 1967 dismissing the petitioners' action for certiorari and prohibition is affirmed. With costs against petitioner-appellants. Phils v Tantuico

From the constitutional, no less than the statutory standpoint then, this claim of appellants finds no support. It has nothing but novelty to call for any attention being paid to it. It is singularly unpersuasive. To repeat, it would be to stretch to unwarranted limits the constitutional power thus conferred on the Auditor General to accede to such a plea. Nothing is better settled than that, broad and comprehensive as it is, it does not include a participation in the investigation of charges to determine whether or not a criminal prosecution should be instituted. 15 Thus, the first two errors of the appellants which would impugn the order of dismissal forreaching a similar conclusion are disposed of.

Facts: Sometime in 1976, the respondent Acting Chairman of the Commission on Audit initiated a special audit of coconut enduser companies, which include herein petitioners, with respect to their Coconut Consumers Stabilization Fund levy collections and the subsidies they had received. As a result of the initial findings of the Performance Audit Office with respect only to the petitioners, respondent Acting COA Chairman directed the Chairman, the Administrator, and the

Military Supervisor of PCA and the Manager of the Coconut Consumers Stabilization Fund, in various letters to them (Annexes G-2 H, I, J, L and Nof petition) to collect the short levies and overpaid subsidies, and to apply subsidy claims to the settlement of short levies should the petitioners fail to remit the amount due. Issues: Whether or not the respondent COA Chairman may disregard the PCA rules and decions have become moot. Decision: In the case at bar, the petitioners have failed to show that acts were done withgrave abuse of discretion amounting to lack of jurisdiction. Case dismissed. Petitioners contend that they are outside the ambit of respondents' "audit" power which is confined to government-owned or controlled corporations. Section 2 (1) of Article IX-D of the Constitution provides that "The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts pertaining to the revenues and receipts of, and expenditures or uses of funds and property, owned or held in trust by or pertaining to, the Government, or any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporation with original charters, and on a post-audit basis. ... (d) such non-governmental entities receiving subsidy or equity directly or indirectly from or through the Government which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity ." (Emphasis supplied) The Constitution formally embodies the long established rule that private entities who handle government funds or subsidies in trust may be examined or audited in their handling of said funds by government auditors. n view of the above considerations, we apply the principle o fprimary jurisdiction:In cases involving specialized disputes, the trend has been to refer the same to an administrative agency of special competence. As early as 1954, theCourt in Pambujan Sur United Mine Workers v. Samar Mining Co., Inc. (94 Phil.932,941), held that under the sense-making and expeditious doctrine of primary jurisdiction ... the courts cannot or will not determine a controversy involving aquestion which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to

comply with the Purposes of the regulatory statute administered." Recently, this Court speaking thru Mr. Chief Justice Claudio Teehankee said that "In this era of clogged court dockets, the need for specialized administrative boards or commissions with the special knowledge, experience and capability to hear and determine promptly disputes on technical matters or essentially factual matters, subject to judicial review in case of grave abuse of discretion, has become wellnigh indispensable." The court reminds us that The legal presumption is that official duty has been duly performed.