[G.R. Nos. 140199-200.

February 6, 2002]
FELICITO S. MACALINO, petitioner, vs.
SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN,
respondents.
PARDO, J.:
The case is a petition for certiorarii[1] assailing the
jurisdiction of the Ombudsman and the Sandiganbayan to
take cognizance of two criminal casesii[2] against petitioner
and his wife Liwayway S. Tan, contending that he is not a
public
officer
within
the
jurisdiction
of
the
Sandiganbayan.iii[3]
On September 16, 1992, the Special Prosecutor, Office of
the Ombudsman, with the approval of the Ombudsman, filed
with the Sandiganbayan two informations against petitioner
and Liwayway S. Tan charging them with estafa through
falsification of official documents (Criminal Case No. 18022)
and frustrated estafa through falsification of mercantile
documents (Criminal Case No. 19268), as follows:
CRIMINAL CASE NO. 18022
That on or about the 15th day of March, 1989 and for
sometime prior or subsequent thereto, in the Municipality of
Mandaluyong, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, FELICITO
S. MACALINO, being then the Assistant Manager of the
Treasury Division and the Head of the Loans Administration
& Insurance Section of the Philippine National Construction
Corporation (PNCC), a government-controlled corporation
with offices at EDSA corner Reliance St., Mandaluyong, and
hence, a public officer, while in the performance of his official
functions, taking advantage of his position, committing the
offense in relation to his office and conspiring and
confederating with his spouse LIWAYWAY S. TAN, being
then the owner of Wacker Marketing, did then and there
willfully, unlawfully, feloniously and by means of deceit
defraud the Philippine National Construction Corporation in
the following manner: in preparing the application with the
Philippine National Bank, Buendia Branch for the issuance of
a demand draft in the amount of NINE HUNDRED EIGHTY
THREE THOUSAND SIX HUNDRED EIGHTY-TWO &
11/100 PESOS (P983,682.11), Philippine Currency, in favor
of Bankers Trust Company, accused FELICITO S.
MACALINO superimposed the name Wacker Marketing as
payee to make it appear that the demand draft was payable
to it, when in truth and in fact and as the accused very well
knew, it was the Bankers Trust Company which was the real
payee as indicated in Check Voucher No. 3-800-89 and PNB
Check No. B236746 supporting said application for demand
draft; subsequently accused FELICITO S. MACALINO
likewise inserted into the letter of PNCC to PNB Buendia
Branch the words payable to Wacker Marketing to make it
appear that the demand drafts to be picked up by the
designated messenger were payable to Wacker Marketing
when in truth and in fact the real payee was Bankers Trust
Company; and as a result of such acts of falsification, PNB
Buendia issued 19 demand drafts for P50,000.00 each and
another demand draft for P33,682.11, all, payable to Wacker
Marketing, which were subsequently delivered to accused
Felicitor S. Macalino and which accused LIWAYWAY S. TAN

thereafter exchanged with PNB Balanga Branch for 19

checks at P50,000.00 each and another for P33,682.11 and
all of which she later deposited into Account No. 0042-02826 of Wacker Marketing at Philtrust Cubao, thereby causing
pecuniary damage and prejudice to Philippine National
Construction Corporation in the amount of P983,682.11.
CONTRARY TO LAW.
Manila, Philippines, August 24, 1992.iv[4]
CRIMINAL CASE NO. 19268
That on or about the 4th day of April, 1990, and
subsequently thereafter, in the Municipality of Mandaluyong,
Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, FELICITO S. MACALINO,
being then the Assistant Manager of the Treasury Division
and the Head of the Loans Administration and Insurance
Section of the Philippine National Construction Corporation,
a government-controlled corporation with offices at EDSA
corner Reliance St., Mandaluyong, Metro Manila, and hence,
a public officer, while in the performance of his official
functions, taking advantage of his position, committing the
offense in relation to his office, and conspiring and
confederating with his spouse LIWAYWAY S. TAN, being
then the owner of Wacker Marketing, did then and there
willfully, unlawfully, feloniously and by means of deceit
defraud the Philippine National Construction Corporation in
the following manner: after receiving Check Voucher No. 04422-90 covering the partial payment by PNCC of the sinking
fund to International Corporate Bank (Interbank) as well as
Check No. 552312 for TWO MILLION TWO HUNDRED
FIFTY THOUSAND PESOS (P2,250,000.00), Philippine
Currency, payable to Interbank for the purpose, accused
FELICITO S. MACALINO falsified PNB Check No. 552312
by altering the payee indicated therein to make it appear that
the aforesaid check was payable to Wacker Marketing
instead of Interbank and further falsified the schedule of
check disbursements sent to PNB Buendia by making it
appear therein that the payee of Check No. 552312 was
Wacker Marketing when in truth and in fact and as the
accused very well knew, it was Interbank which was the real
payee; accused LIWAYWAY S. TAN thereafter deposited
Check No. 552312 into Account No. 0042-0282-6 of Wacker
Marketing at Philtrust Cubao and Wacker Marketing
subsequently issued Philtrust Check No. 148039 for
P100,000.00 in favor of accused FELICITO S. MACALINO;
which acts of falsification performed by the accused would
have defrauded the Philippine National Construction
Corporation of P2,250,000.00 had not PNB Buendia ordered
the dishonor of Check No. 552312 after noting the
alteration/erasures thereon, thereby failing to produce the
felony by reason of causes independent of the will of the
accused.
CONTRARY TO LAW.
Manila, Philippines, May 28, 1993.v[5]
Upon arraignment on November 9, 1992, petitioner pleaded
not guilty to the charges. Hence, trial proceeded.vi[6]

However, during the initial presentation of evidence for the

defense, petitioner moved for leave to file a motion to
dismiss on the ground that the Sandiganbayan has no
jurisdiction over him since he is not a public officer because
the Philippine National Construction Corporation (PNCC),
formerly the Construction and Development Corporation of
the Philippines (CDCP), is not a government-owned or
controlled corporation with original charter.vii[7] The People
of the Philippines opposed the motion.viii[8]
On August 5, 1999, the Sandiganbayan promulgated a
resolution denying petitioners motion to dismiss for lack of
merit.ix[9]
Hence, this petition.x[10]
The Issue
The sole issue raised is whether petitioner, an employee of
the PNCC, is a public officer within the coverage of R. A. No.
3019, as amended.
The Courts Ruling
Petitioner contends that an employee of the PNCC is not a
public officer as defined under Republic Act No. 3019, as
follows:
Sec. 2. (a) xxx xxx xxx.
(b) Public officer includes elective and appointive officials
and employees, permanent or temporary, whether in the
unclassified or classified or exempted service receiving
compensation, even nominal, from the government as
defined in the preceding paragraph.
We agree.
To resolve the issue, we resort to the 1987 Constitution.
Article XI, on the Accountability of Public Officers, provides:
Section 12. The Ombudsman and his deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency
or instrumentality thereof, including government-owned or
controlled corporations x x x.
Section 13. The Office of the Ombudsman shall have the
following powers, functions and duties:
1. Investigate on its own, or on complaint by any person,
any act or omission of any public official or employee, office
or agency, when such act or omission appears to be illegal,
unjust, improper and inefficient. x x x
2. Direct, upon complaint or at its instance, any public
official or employee of the government, or any subdivision,
agency or instrumentality thereof, as well as of any
government-owned or controlled corporations with original
charters, to perform and expedite any act or duty required by

law, or to stop, prevent, and correct any abuse or impropriety

in the performance of duties. (underscoring supplied)
Further, Article IX-B, Section 2 (1) of the 1987 Constitution
provides:
The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned and controlled corporations with original
charters. (underscoring supplied)
Republic Act No. 6770 provides:
Section 15. Powers, Functions and Duties -The Office of the
Ombudsman shall have the following powers, functions and
duties:
1. Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. x x x.
2. Direct, upon complaint or at its own instance, any officer
or employee of the Government, or of any subdivision,
agency or instrumentality thereof, as well as any
government-owned or controlled corporations with original
charters, to perform and expedite any act or duty required by
law, or to stop, prevent, and correct any abuse or impropriety
in the performance of duties.
Inasmuch as the PNCC has no original charter as it was
incorporated under the general law on corporations, it
follows inevitably that petitioner is not a public officer within
the coverage of R. A. No. 3019, as amended. Thus, the
Sandiganbayan has no jurisdiction over him. The only
instance when the Sandiganbayan has jurisdiction over a
private individual is when the complaint charges him either
as a co-principal, accomplice or accessory of a public officer
who has been charged with a crime within the jurisdiction of
Sandiganbayan.xi[11]
The casesxii[12] cited by respondent People of the
Philippines are inapplicable because they were decided
under the provisions of the 1973 Constitution which included
as public officers, officials and employees of corporations
owned and controlled by the government though organized
and existing under the general corporation law. The 1987
Constitution excluded such corporations.
The crimes charged against petitioner were committed in
1989 and 1990.xiii[13] The criminal actions were instituted in
1992. It is well-settled that the jurisdiction of a court to try a
criminal case is determined by the law in force at the
institution of the action.xiv[14]
The Fallo
IN VIEW WHEREOF, the Court GRANTS the petition. The
Court SETS ASIDE the order dated July 29, 1999 of the
Sandiganbayan in Criminal Cases Nos. 18022 and 19268
and ORDERS the DISMISSAL of the two (2) cases against
petitioner and his wife.

G.R. Nos. 147706-07

February 16, 2005

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division)
and EFREN L. ALAS, respondents.
DECISION
CORONA, J.:
Does the Sandiganbayan have jurisdiction over presidents,
directors or trustees, or managers of government-owned or
controlled corporations organized and incorporated under
the Corporation Code for purposes of the provisions of RA
3019, otherwise known as the Anti-Graft and Corrupt
Practices Act? The petitioner, represented by the Office of
the Special Prosecutor (OSP), takes the affirmative position
in this petition for certiorari under Rule 65 of the Rules of
Court. Respondent Efren L. Alas contends otherwise,
together with the respondent court.
Pursuant to a resolution dated September 30, 1999 of the
Office of the Ombudsman, two separate informations1 for
violation of Section 3(e) of RA 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, were filed with the
Sandiganbayan on November 17, 1999 against Efren L.
Alas. The charges emanated from the alleged anomalous
advertising contracts entered into by Alas, in his capacity as
President and Chief Operating Officer of the Philippine
Postal Savings Bank (PPSB), with Bagong Buhay Publishing
Company which purportedly caused damage and prejudice
to the government.
On October 30, 2002, Alas filed a motion to quash the
informations for lack of jurisdiction, which motion was
vehemently opposed by the prosecution. After considering
the arguments of both parties, the respondent court ruled
that PPSB was a private corporation and that its officers,
particularly herein respondent Alas, did not fall under
Sandiganbayan
jurisdiction.
According
to
the
Sandiganbayan:
After a careful consideration of the arguments of the
accused-movant as well as of that of the prosecution, we are
of the considered opinion that the instant motion of the
accused is well taken. Indeed, it is the basic thrust of
Republic Act as well as (sic) Presidential Decree No. 1606
as amended by President Decree No. 1486 and Republic
Act No. 7975 and Republic Act No. 8249 that the
Sandiganbayan has jurisdiction only over public officers
unless private persons are charged with them in the
commission of the offenses.
The records disclosed that while Philippine Postal Savings
Bank is a subsidiary of the Philippine Postal Corporation
which is a government owned corporation, the same is not
created by a special law. It was organized and incorporated
under the Corporation Code which is Batas Pambansa Blg.
68. It was registered with the Securities and Exchange
Commission under SEC No. AS094-005593 on June 22,
1994 with a lifetime of fifty (50) years. Under its Articles of
Incorporation the purpose for which said entity is formed was
primarily for business, xxx

Likewise, a scrutiny of the seven (7) secondary purposes of

the corporation points to the conclusion that it exists for
business.l^vvphi1.net Obviously, it is not involved in the
performance of a particular function in the exercise of
government power. Thus, its officers and employees are not
covered by the GSIS and are under the SSS law, and
actions for reinstatement and backwages are not within the
jurisdiction of the Civil Service Commission but by the
National Labor Relations Commission (NLRC).
The Supreme Court, in the case of Trade Unions of the
Philippines and Allied Services vs. National Housing Corp.,
173 SCRA 33, held that the Civil Service now covers only
government owned or controlled corporations with original or
legislative charters, those created by an act of Congress or
by special law, and not those incorporated under and
pursuant to a general legislation. The Highest Court
categorically ruled that the Civil Service does not include
government-owned or controlled corporation which are
organized as subsidiaries of government-owned or
controlled corporation under the general corporation law.
In Philippine National Oil Company Energy Development
Corporation vs. Leogardo, 175 SCRA 26, the Supreme Court
emphasized that:
The test in determining whether a government-owned or
controlled corporation is subject to the Civil Service Law is
the manner of its creation such that government corporation
created by special charter are subject to its provision while
those incorporated under the general corporation law are not
within its coverage.
Likewise in Davao City Water District vs. Civil Service
Commission, 201 SCRA 601 it was held that "by
government-owned or controlled corporation with original
charter we mean government-owned or controlled
corporation created by a special law and not under the
Corporation Code of the Philippines" while in Llenes vs.
Dicdican, et al., 260 SCRA 207, a public officer has been
ruled, as a person whose duties involve the exercise of
discretion in the performance of the function of government.
Clearly, on the basis of the foregoing pronouncements of the
Supreme Court, the accused herein cannot be considered a
public officer. Thus, this Court may not exercise jurisdiction
over his act.2
Dissatisfied, the People, through the Office of the Special
3
Prosecutor (OSP), filed this petition arguing, in essence,
that the PPSB was a government-owned or controlled
corporation as the term was defined under Section 2(13) of
the Administrative Code of 1987.4 Likewise, in further
defining the jurisdiction of the Sandiganbayan, RA 8249 did
not make a distinction as to the manner of creation of the
government-owned or controlled corporations for their
officers to fall under its jurisdiction. Hence, being President
and Chief Operating Officer of the PPSB at the time of
commission of the crimes charged, respondent Alas came
under the jurisdiction of the Sandiganbayan.1awphi1.nt
Quoting at length from the assailed resolution dated
February 15, 2001, respondent Alas, on the other hand,
practically reiterated the pronouncements made by the

respondent court in support of his conclusion that the PPSB

was not created by special law, hence, its officers did not fall
within the jurisdiction of the Sandiganbayan.5
We find merit in the petition.
6

Section 2(13) of EO 292 defines government-owned or

controlled corporations as follows:
Sec. 2. General Terms Defined Unless the specific words
of the text or the context as a whole or a particular statute,
shall require a different meaning:
xxx xxx xxx
(13) government owned or controlled corporations refer to
any agency organized as a stock or non-stock corporation
vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the
government directly or indirectly or through its
instrumentalities either wholly, or where applicable as in the
case of stock corporations to the extent of at least 51% of its
capital stock: provided, that government owned or controlled
corporations maybe further categorized by the department of
the budget, the civil service commission and the commission
on audit for the purpose of the exercise and discharge of
their respective powers, functions and responsibilities with
respect to such corporations.
From the foregoing, PPSB fits the bill as a governmentowned or controlled corporation, and organized and
incorporated under the Corporation Code as a subsidiary of
the Philippine Postal Corporation (PHILPOST). More than
99% of the authorized capital stock of PPSB belongs to the
government while the rest is nominally held by its
incorporators who are/were themselves officers of
PHILPOST. The creation of PPSB was expressly sanctioned
by Section 32 of RA 7354, otherwise known as the Postal
Service Act of 1992, for purposes of, among others, "to
encourage and promote the virtue of thrift and the habit of
savings among the general public, especially the youth and
the marginalized sector in the countryside xxx" and to
facilitate postal service by "receiving collections and making
payments, including postal money orders."7

Service Commission. The same is governed by Article XI,

Section 4 of the 1987 Constitution which provides that "the
present anti-graft court known as the Sandiganbayan shall
continue to function and exercise its jurisdiction as now or
hereafter may be provided by law." This provision, in effect,
retained the jurisdiction of the anti-graft court as defined
under Article XIII, Section 5 of the 1973 Constitution which
mandated its creation, thus:
Sec. 5. The Batasang Pambansa shall create a special
court, to be known as Sandiganbayan, which shall have
jurisdiction over criminal and civil cases involving graft and
corrupt practices and such other offense committed by public
officers and employees, including those in governmentowned or controlled corporations, in relation to their office as
may be determined by law. (Italics ours)
On March 30, 1995, Congress, pursuant to its authority
vested under the 1987 Constitution, enacted RA 79758
maintaining the jurisdiction of the Sandiganbayan over
presidents, directors or trustees, or managers of
government-owned or controlled corporations without any
distinction whatsoever. Thereafter, on February 5, 1997,
9
Congress enacted RA 8249 which preserved the subject
provision:
Section 4, Jurisdiction. The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section, Title VII,
Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in
the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense,
(1) Officials of the executive branch occupying the positions
of regional director, and higher, otherwise classified as grade
"27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758)
specifically including:
xxx xxx xxx

It is not disputed that the Sandiganbayan has jurisdiction

over presidents, directors or trustees, or managers of
government-owned or controlled corporations with original
charters whenever charges of graft and corruption are
involved. However, a question arises whether the
Sandiganbayan has jurisdiction over the same officers in
government-owned or controlled corporations organized and
incorporated under the Corporation Code in view of the
delimitation provided for in Article IX-B Section 2(1) of the
1987 Constitution which states that:

(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state
universities or educational institutions or foundations. (Italics
ours)

SEC. 2. (1) The Civil Service embraces all branches,

subdivisions, instrumentalities, and agencies of the
government, including government-owned or controlled
corporations with original charters.

The deliberate omission, in our view, clearly reveals the

intention of the legislature to include the presidents, directors
or trustees, or managers of both types of corporations within
the jurisdiction of the Sandiganbayan whenever they are
involved in graft and corruption. Had it been otherwise, it
could have simply made the necessary distinction. But it did
not.

It should be pointed out however, that the jurisdiction of the

Sandiganbayan is separate and distinct from the Civil

The legislature, in mandating the inclusion of "presidents,

directors or trustees, or managers of government-owned or
controlled corporations" within the jurisdiction of the
Sandiganbayan, has consistently refrained from making any
distinction with respect to the manner of their creation.

It is a basic principle of statutory construction that when the

law does not distinguish, we should not distinguish. Ubi lex
non distinguit nec nos distinguere debemos. Corollarily,
Article XI Section 12 of the 1987 Constitution, on the
jurisdiction of the Ombudsman (the governments
prosecutory arm against persons charged with graft and
corruption), includes officers and employees of governmentowned or controlled corporations, likewise without any
distinction.1awphi1.nt
In Quimpo v. Tanodbayan,10 this Court, already mindful of
the pertinent provisions of the 1987 Constitution, ruled that
the concerned officers of government-owned or controlled
corporations, whether created by special law or formed
under the Corporation Code, come under the jurisdiction of
the Sandiganbayan for purposes of the provisions of the
Anti-Graft and Corrupt Practices Act. Otherwise, as we
emphasized therein, a major policy of Government, which is
to eradicate, or at the very least minimize, the graft and
corruption that has permeated the fabric of the public service
like a malignant social cancer, would be seriously
undermined. In fact, Section 1 of the Anti-Graft and Corrupt
Practices Act embodies this policy of the government, that is,
to repress certain acts not only of public officers but also of
private persons constituting graft or corrupt practices or
which may lead thereto.
The foregoing pronouncement has not outlived its
usefulness. On the contrary, it has become even more
relevant today due to the rampant cases of graft and
corruption that erode the peoples faith in government. For
indeed, a government-owned or controlled corporation can
conceivably create as many subsidiary corporations under
the Corporation Code as it might wish, use public funds,
disclaim public accountability and escape the liabilities and
responsibilities provided by law. By including the concerned
officers of government-owned or controlled corporations
organized and incorporated under the Corporation Code
within the jurisdiction of the Sandiganbayan, the legislature
evidently seeks to avoid just that.
WHEREFORE, in view of the foregoing, the petition is
hereby GRANTED and the assailed resolution dated
February 15, 2001 of the respondent court is hereby
REVERSED and SET ASIDE.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez,
Morales, and Garcia, JJ., concur.

Carpio-

G.R. No. 158187

February 11, 2005

MARILYN GEDUSPAN and DRA. EVANGELYN

FARAHMAND, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN,
respondents.

West Negros College, Inc., thus accused MARILYN C.

GEDUSPAN in the course of the performance of her official
functions, had given unwarranted benefits to Tiong Bi, Inc.,
Tiong Bi Medical Center, herein represented by accused DR.
EVANGELINE C. FARAHMAND, to the damage and injury of
West Negros College, Inc.
CONTRARY TO LAW.

CORONA, J.:
Does the Sandiganbayan have jurisdiction over a regional
director/manager of government-owned or controlled
corporations organized and incorporated under the
Corporation Code for purposes of RA 3019, the Anti-Graft
and Corrupt Practices Act? Petitioner Marilyn C. Geduspan
assumes a negative view in the instant petition for certiorari
under Rule 65 of the Rules of Court. The Office of the
Special Prosecutor contends otherwise, a view shared by
the respondent court.

Both accused filed a joint motion to quash dated July 29,

2002 contending that the respondent Sandiganbayan had no
jurisdiction over them considering that the principal accused
Geduspan was a Regional Director of Philhealth, Region VI,
a position classified under salary grade 26.
In a resolution dated January 31, 2003, the respondent court
denied the motion to quash. The motion for reconsideration
was likewise denied in a resolution dated May 9, 2003.
Hence, this petition.

In the instant Rule 65 petition for certiorari with prayer for a

writ of preliminary injunction and/or issuance of a temporary
restraining order, Geduspan seeks to annul and set aside
the resolutions1 dated January 31, 2003 and May 9, 2003 of
the respondent Sandiganbayan, Fifth Division. These
resolutions denied her motion to quash and motion for
reconsideration, respectively.
On July 11, 2002, an information docketed as Criminal Case
No. 27525 for violation of Section 3(e) of RA 3019, as
amended, was filed against petitioner Marilyn C. Geduspan
and Dr. Evangeline C. Farahmand, Philippine Health
Insurance
Corporation
(Philhealth)
Regional
Manager/Director and Chairman of the Board of Directors of
Tiong Bi Medical Center, Tiong Bi, Inc., respectively. The
information read:
That on or about the 27th day of November, 1999, and for
sometime subsequent thereto, at Bacolod City, province of
Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, above-named accused MARILYN C.
GEDUSPAN, a public officer, being the Regional
Manager/Director, of the Philippine Health Insurance
Corporation, Regional office No. VI, Iloilo City, in such
capacity and committing the offense in relation to office,
conniving, confederating and mutually helping with DR.
EVANGELINE C. FARAHMAND, a private individual and
Chairman of the Board of Directors of Tiong Bi Medical
Center, Tiong Bi, Inc., Mandalangan, Bacolod City, with
deliberate intent, with evident bad faith and manifest
partiality, did then and there wilfully, unlawfully and
feloniously release the claims for payments of patients
confined at L.N. Memorial Hospital with Philippine Health
Insurance Corp., prior to January 1, 2000, amounting to
NINETY ONE THOUSAND NINE HUNDRED FIFTY-FOUR
and 64/100 (P91,954.64), Philippine Currency, to Tiong Bi
Medical Center, Tiong Bi, Inc. despite clear provision in the
Deed of Conditional Sale executed on November 27, 1999,
involving the sale of West Negros College, Inc. to Tiong Bi,
Inc. or Tiong Bi Medical Center, that the possession,
operation and management of the said hospital will be
turned over by West Negros College, Inc. to Tiong Bi, Inc.
effective January 1, 2000, thus all collectibles or accounts
receivable accruing prior to January 1, 2000 shall be due to

Petitioner Geduspan alleges that she is the Regional

Manager/Director of Region VI of the Philippine Health
Insurance
Corporation
(Philhealth).
However,
her
appointment paper and notice of salary adjustment2 show
that she was appointed as Department Manager A of the
Philippine Health Insurance Corporation (Philhealth) with
salary grade 26. Philhealth is a government owned and
controlled corporation created under RA 7875, otherwise
known as the National Health Insurance Act of 1995.
Geduspan argues that her position as Regional
Director/Manager is not within the jurisdiction of the
Sandiganbayan. She cites paragraph (1) and (5), Section 4
of RA 8249 which defines the jurisdiction of the
Sandiganbayan:
Section 4. Jurisdiction. The Sandiganbayan shall exercise
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as Grade
"27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758);
specifically including;
xxx xxx xxx
(5) All other national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
The petition lacks merit.

The records show that, although Geduspan is a Director of

Region VI of the Philhealth, she is not occupying the position
of Regional Director but that of Department Manager A,
hence, paragraphs (1) and (5) of Section 4 of RA 8249 are
not applicable.
It is petitioners appointment paper and the notice of salary
adjustment that determine the classification of her position,
that is, Department Manager A of Philhealth.
Petitioner admits that she holds the position of Department
Manager A of Philhealth. She, however, contends that the
position of Department Manager A is classified under salary
grade 26 and therefore outside the jurisdiction of respondent
court. She is at present assigned at the Philhealth Regional
Office VI as Regional Director/Manager.
Petitioner anchors her request for the issuance of a
temporary restraining order on the alleged disregard by
respondent court of the decision of this Court in Ramon
Cuyco v. Sandiganbayan.3
However, the instant case is not on all fours with Cuyco. In
that case, the accused Ramon Cuyco was the Regional
Director of the Land Transportation Office (LTO), Region IX,
Zamboanga City, but at the time of the commission of the
crime in 1992 his position of Regional Director of LTO was
classified as Director II with salary grade 26. Thus, the Court
ruled that the Sandiganbayan had no jurisdiction over his
person.
In contrast, petitioner held the position of Department
Director A of Philhealth at the time of the commission of the
offense and that position was among those enumerated in
paragraph 1(g), Section 4a of RA 8249 over which the
Sandiganbayan has jurisdiction:
Section 4. Section 4 of the same decree is hereby further
amended to read as follows:
Section 4. Jurisdiction. The Sandiganbayan shall exercise
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in
the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense;
(1) Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as Grade
Grade 27 and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758),
specifically including:

(d) xxx xxx xxx

(e) xxx xxx xxx
(f) xxx xxx xxx
(g) Presidents, directors or trustees, or managers of
government-owned and controlled corporations, state
universities or educational institutions or foundations."
(Underscoring supplied).
It is of no moment that the position of petitioner is merely
classified as salary grade 26. While the first part of the
abovequoted provision covers only officials of the executive
branch with the salary grade 27 and higher, the second part
thereof "specifically includes" other executive officials whose
positions may not be of grade 27 and higher but who are by
express provision of law placed under the jurisdiction of the
said court.
Hence, respondent court is vested with jurisdiction over
petitioner together with Farahmand, a private individual
charged together with her.
The position of manager in a government-owned or
controlled corporation, as in the case of Philhealth, is within
the jurisdiction of respondent court. It is the position that
petitioner holds, not her salary grade, that determines the
jurisdiction of the Sandiganbayan.
This Court in Lacson v. Executive Secretary, et al. 4 ruled:
A perusal of the aforequoted Section 4 of R.A. 8249 reveals
that to fall under the exclusive jurisdiction of the
Sandiganbayan, the following requisites must concur: (1) the
offense committed is a violation of (a) R.A. 3019, as
amended (the Anti-Graft and Corrupt Practices Act), (b) R.A.
1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2,
Title VII, book II of the Revised Penal Code (the law on
bribery), (d) Executive Order Nos. 1,2, 14 and 14-A, issued
in 1986 (sequestration cases), or (e) other offenses or
felonies whether simple or complexed with other crimes; (2)
the offender committing the offenses in items (a), (b), (c) and
(e) is a public official or employee holding any of the
positions enumerated in paragraph a of section 4; and (3)
the offense committed is in relation to the office.
To recapitulate, petitioner is a public officer, being a
department manager of Philhealth, a government-owned and
controlled corporation. The position of manager is one of
those mentioned in paragraph a, Section 4 of RA 8249 and
the offense for which she was charged was committed in
relation to her office as department manager of Philhealth.
Accordingly, the Sandiganbayan has jurisdiction over her
person as well as the subject matter of the case.

(a) xxx xxx xxx

WHEREFORE, petition is hereby DISMISSED for lack of

merit.

(b) xxx xxx xxx

Costs against petitioner.

(c) xxx xxx xxx

SO ORDERED.

G.R. No. 169328

October 27, 2006

JULIAN A. ALZAGA, MEINRADO ENRIQUE A. BELLO,

and MANUEL S. SATUITO, petitioners,
vs.
HONORABLE SANDIGANBAYAN (2nd Division) and
PEOPLE OF THE PHILIPPINES, respondents.
YNARES-SANTIAGO, J.:
This Petition for Certiorari assails the April 25, 2005 and
August 10, 2005 Resolutions1 of the Sandiganbayan in
Criminal Case Nos. 25681-25684, which respectively
reversed the May 27, 2004 Resolution2 of the court a quo
and denied petitioners Motion for Reconsideration.3
On October 7, 1999,4 four separate Informations for violation
of Section 3(e) of Republic Act (R.A.) No. 3019 were filed
against petitioners Julian A. Alzaga, Meinrado Enrique A.
Bello and Manuel S. Satuito relative to alleged irregularities
which attended the purchase of four lots in Tanauan,
Batangas, by the Armed Forces of the Philippines
Retirement and Separation Benefits System (AFP-RSBS).
Alzaga was the Head of the Legal Department of AFP-RSBS
when one of the lots was purchased. Bello was a Police
Superintendent and he succeeded Alzaga as Head of the
Legal Department. It was during his tenure when the other
three lots were purchased. Both were Vice Presidents of
AFP-RSBS. On the other hand, Satuito was the Chief of the
Documentation and Assistant Vice President of the AFPRSBS.5
Petitioners filed their respective Motions to Quash and/or
Dismiss the informations alleging that the Sandiganbayan
has no jurisdiction over them and their alleged offenses
because the AFP-RSBS is a private entity created for the
benefit of its members and that their positions and salary
grade levels do not fall within the jurisdiction of the
Sandiganbayan pursuant to Section 4 of Presidential Decree
(P.D.) No. 1606 (1978),6 as amended by R.A. No. 8249
(1997).7
On May 27, 2004, the Sandiganbayan granted petitioners
motions to dismiss for lack of jurisdiction.
However, in a Resolution dated April 25, 2005, the
Sandiganbayan reversed its earlier resolution. It held that the
AFP-RSBS is a government-owned or controlled corporation
thus subject to its jurisdiction. It also found that the positions
held by Alzaga and Bello, who were Vice Presidents, and
Satuito who was an Assistant Vice President, are covered
and embraced by, and in fact higher than the position of
managers mentioned under Section 4 of P.D. No. 1606, as
amended, thus under the jurisdiction of the Sandiganbayan.
Petitioners Motion for Reconsideration8 was denied, hence,
this petition raising the following issues:
I
THE COURT A QUO COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DECIDING A

QUESTION OF SUBSTANCE IN A MANNER NOT

ACCORD WITH LAW
AND
APPLICABLE
JURISPRUDENCE THAT IT HAS JURISDICTION
OVER THE PERSON OF THE PETITIONERS
II
THE COURT A QUO COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DECIDING A
QUESTION OF SUBSTANCE IN A MANNER NOT
IN ACCORD WITH LAW OR JURISPRUDENCE
THAT THE ARMED FORCES RETIREMENT AND
SEPARATION BENEFITS SYSTEM (AFP-RSBS) IS
A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION
III
THE COURT A QUO COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DECIDING A
QUESTION OF SUBSTANCE IN A MANNER NOT
IN ACCORD WITH LAW OR JURISPRUDENCE
THAT PETITIONERS ALZAGA AND BELLO[,] WHO
WERE BOTH VICE-PRESIDENTS OF THE AFPRSBS[,] AND PETITIONER SATUITO[,] WHO WAS
ASSISTANT VICE-PRESIDENT OF THE AFPRSBS[,] ARE COVERED AND EMBRACED BY THE
POSITION "MANAGERS" MENTIONED UNDER
SECTION 4 a (1) (g) OF PD NO. 1606, AS
AMENDED.9
The petition is without merit.
The AFP-RSBS was established by virtue of P.D. No. 361
(1973)10 in December 1973 to guarantee continuous
financial support to the AFP military retirement system, as
provided for in R.A. No. 340 (1948).11 It is similar to the
Government Service Insurance System (GSIS) and the
Social Security System (SSS) since it serves as the system
that manages the retirement and pension funds of those in
the military service.12
The AFP-RSBS is administered by the Chief of Staff of the
AFP through a Board of Trustees and Management Group,13
and funded from congressional appropriations and
compulsory contributions from members of the AFP;
donations, gifts, legacies, bequests and others to the
system; and all earnings of the system which shall not be
14
subject to any tax whatsoever.
Section 4 of P.D. No. 1606, as further amended by R.A. No.
8249, grants jurisdiction to the Sandiganbayan over:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter
II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are
officials occupying the following positions in the
government whether in a permanent, acting or

interim capacity, at the time of the commission of the

offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade 27 and higher, of the
Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:
xxxx
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities
or
educational
institutions
or
foundations;
15

In People v. Sandiganbayan, where herein petitioners

Alzaga and Satuito were respondents, this Court has ruled
that the character and operations of the AFP-RSBS are
imbued with public interest thus the same is a government
entity and its funds are in the nature of public funds. In
16
Ramiscal, Jr. v. Sandiganbayan, we held that the AFPRSBS is a government-owned and controlled corporation
under R.A. No. 9182, otherwise known as The Special
Purpose Vehicle Act of 2002. These rulings render
unmeritorious petitioners assertion that the AFP-RSBS is a
private entity.
There is likewise no merit in petitioners claim that the
Sandiganbayan has no jurisdiction over them since their
positions as vice presidents and assistant vice president are
not covered nor embraced by the term "managers" under
section 4 of RA. No. 8249.
We held in Geduspan v. People,17 that while the first part of
section 4 covers only officials of the executive branch with
the salary grade 27 and higher, the second part "specifically
includes" other executive officials whose positions may not
be of grade 27 and higher but who are by express provision
of law placed under the jurisdiction of the said court. In the
latter category, it is the position held and not the salary
grade which determines the jurisdiction of the
Sandiganbayan. Thus, presidents, directors or trustees, or
managers of government owned and controlled corporations,
are under the jurisdiction of the Sandiganbayan.
In the instant case, petitioners Alzaga and Bello were Head
of the Legal Department while petitioner Satuito was Chief of
the Documentation with corresponding ranks of Vice
Presidents and Assistant Vice President. These positions
are not specifically enumerated in RA. No. 8249; however,
as correctly observed by the Sandiganbayan, their ranks as
Vice Presidents and Assistant Vice President are even
higher than that of "managers" mentioned in RA. No. 8249.
In sum, the Sandiganbayan correctly ruled that the AFPRSBS is a government-owned and controlled corporation
and that it has jurisdiction over the persons of petitioners
who were Vice Presidents and Assistant Vice President
when the charges against them were allegedly committed.
WHEREFORE, the instant Petition for Certiorari is
DISMISSED. The assailed Resolution of the Sandiganbayan

dated April 25, 2005 that the AFP-RSBS is a governmentowned and controlled corporation and that it has jurisdiction
over the persons of the petitioners and the Resolution dated
August 10, 2005 denying petitioners motion for
reconsideration, are AFFIRMED.
SO ORDERED.

G.R. No. 152651 August 7, 2006

ANDABAI T. ARIMAO, Petitioner,
vs.
SAADEA P. TAHER, Respondent.
TINGA, J.:
Before us is a petition for review of the Decision and Order
dated 16 October 2001 and 31 January 2002, respectively,
of Branch 14 of the Regional Trial Court, 12th Judicial
Region, Cotabato City, in SPL. Civil Case No. 660, entitled
"Saadea P. Taher v. Gov. Nur Misuari, in his capacity as
ARMM Regional Governor, Andabai T. Arimao and Bajunaid
Kamaludin, Acting Director of TESDA-ARMM," which
enjoined respondents therein, including petitioner Andabai T.
Arimao, from carrying out the effects of the Memorandum
dated 04 August 2000 issued by then Autonomous Region in
Muslim Mindanao (ARMM) Governor Nur P. Misuari.
The facts of the case, as culled from the records, follow:
On 22 March 1995, petitioner was appointed as Director II,
Bureau of Non-formal Education, Department of Education,
Culture and Sports (DECS-ARMM). Thereafter, on 17 July
1995, respondent was appointed Education Supervisor II.
Petitioners appointment, however, was protested by a
certain Alibai T. Benito, who claimed that said appointment
did not pass through any evaluation by the personnel
selection board. 1 Petitioners appointment was eventually
disapproved by the Civil Service Commission-Field Office
(CSC-FO), Cotabato City, for failure to meet the experience
required for the position. On 02 May 1996, the CSC, through
Resolution No. 96- 3101, affirmed the findings of the CSCFO and ordered petitioner to be reverted to her former
position of Education Supervisor II. 2 Petitioner sought
reconsideration of the decision.
In the interim, petitioner applied for and was granted by the
DECS-ARMM an academic scholarship with pay effective 30
October 1996 in her capacity as Education Supervisor II.
The scholarship was limited to a period of one year. 3
Meanwhile, petitioners motion for reconsideration of CSC
Resolution No. 96-3101 was denied. 4 Subsequently, she
filed a petition for review of the two CSC Resolutions before
the Court of Appeals 5 which, however, denied due course to
the petition on 10 June 1998. 6 On 17 October 1998, the
Court of Appeals issued an Entry of Judgment declaring the
denial of the petition to be final and executory. 7
In the meantime, the position of Education Supervisor II
being occupied by respondent was devolved from DECSARMM to the Technical Education and Skills Development
Authority (TESDA)- ARMM.
On 2 December 1998, petitioner informed the CSC Regional
Office in Cotabato City that she was already allowed by the
Director of TESDA-ARMM to report for duty, only that she
and respondent are reporting to the same position. 8 On 10
December 1998, the CSC Regional Director enjoined
9
respondent from reporting to the TESDA-ARMM.
It

appears, however, that respondent continued to report as

Education Supervisor II.
On 7 December 1998, respondent, unaware that petitioner
was granted a study leave from October 1996 to October
1997, filed a complaint before the Regional Director, ARMM,
relative to petitioners continued absence. On 24 December
1998, upon the complaint filed by respondent, the Executive
Secretary of ARMM, by authority of the ARMM Regional
Governor and per his Memorandum of even date, declared
petitioner to have been Absent Without Leave (AWOL) by
reason of her failure to report to her office for at least a year
after the expiration of her study leave and directed that she
be dropped from the payroll. 10 Petitioner appealed the said
Memorandum to the Office of the ARMM Regional Governor.
In Resolution No. 001-99 dated 17 March 1999, the said
office denied the appeal, finding that from 30 October 1996
up to the opening of school year 1997-1998, first semester,
petitioner failed to report to office despite the fact that she
was not able to enroll immediately upon the approval of her
11
study leave.
Further, petitioners act of enrolling in the
second semester of school year 1997-1998 in the absence
of an approved extension of her study leave is a clear
violation of the implementing guidelines of Republic Act No.
4670, or the Magna Carta for Public School Teachers. The
dispositive portion of the Resolution reads:
WHEREFORE, [p]remises considered, the instant letter of
Mrs. Arimao to reconsider the action of the Executive
Secretary in dropping her from the roll is hereby DENIED
and is accordingly DISMISSED for lack of merit. Thus, the
Memorandum Ordered [sic] of the Executive Secretary on
Authority of the Regional Governor dated December 24,
1998 is hereby affirmed and remained [sic] undisturbed.
Nonetheless, since the act of dropping one from the roll is
non[-]disciplinary action on the ground of being guilty of the
charge of Absence Without Approved Leave (AWOL) the
respondent may be appointed to other position[s] in the
Government service at the discretion of the appointing
authority.
SO ORDERED. 12
On 20 July 2000, Datu Guimid P. Matalam, Regional Vice
Governor/Acting Regional Governor, ordered petitioner to
reassume her former position as Education Supervisor II,
and revoked the ARMM Executive Secretarys Resolution
13
dated 24 December 1998.
However, on 1 August 2000,
the same Acting Regional Governor issued the following
order:
In the interest of the service and considering the need to
observe fairness and justice in dealing with our personnel,
you are hereby directed to implement the above mentioned
resolution rendered by the Regional Solicitor General on
March 17, 1999.
As such, you are likewise directed to maintain STATUS
QUO on the part of Ms. SAADEA P. TAHER, Education
Supervisor II with permanent status duly approved by the
Civil Service Commission.

This Memorandum Order takes effective [sic] immediately

and superscede/ revokes all previous order inconsistent
herewith. 14
However, on 4 August 2000, ARMM Regional Governor
15
Misuari issued a Memorandum
to the TESDA-ARMM,
ordering
petitioners
reinstatement,
presumably
in
accordance with CSC Resolution No. 96-3101 and CSCARMM directive dated 26 July 2000.
Respondent thus filed a Petition for Prohibition before the
Regional Trial Court of Cotabato City, claiming that she has
no other plain, speedy and adequate remedy, as she stands
to suffer grave injustice and irreparable injury if she is
removed from the office which she has held for more than
16
five years. On 21 August 2000, the trial court issued a writ
of preliminary injunction commanding ARMM Regional
Governor Misuari and the TESDA-ARMM to desist from
17
carrying out the said Memorandum.
On 16 October 2001, the trial court rendered the assailed
18
Decision,
holding that the 04 August 2000 Memorandum
of the ARMM Regional Governor could no longer be
implemented because the CSC resolutions ordering
petitioners reinstatement, relied upon by ARMM Regional
Governor Misuari, were superseded by the CSC resolutions
finding petitioner on AWOL and dropping her from the
payroll. According to the trial court, this controversy has to
be resolved by the CSC, which has the exclusive jurisdiction
over disciplinary cases and cases involving personnel
actions affecting employees in the public service. The trial
court thus ordered:
WHEREFORE, as prayed for, the respondents are ordered
to cease and desist in prosecuting or carrying out the effects
of the August 4, 2000 [M]emorandum and for respondents to
cease and desist from continuance of any act which will be
in violation of the right of petitioner with respect to the
subject matter of the action or proceeding so as not to
render the judgment ineffectual.
SO ORDERED.

19

Petitioner filed a motion for reconsideration but the motion

20
was denied on 31 January 2002.
On 31 October 2000, petitioner moved for the issuance of a
writ of execution of CSC Resolution No. 96-3101 (ordering
her reinstatement to her former office). CSC issued
21
Resolution No. 01-0132, dated 15 January 2001, ordering
the concerned officials of the DECS-ARMM to implement
CSC Resolution No. 96-3101.
Meanwhile, on 22 May 2002, the CSC, acting on the letter of
the Regional Solicitor General of the ARMM regarding the
implementation of CSC Resolution No. 96-3101, issued
Resolution No. 020743. 22 According to the CSC, it issued
Resolution No. 01-0132 because petitioner did not inform the
Commission that she had been declared on AWOL and
dropped from the rolls since 24 December 1998. 23 ARMM
Regional Governor Misuaris Memorandum dated 04 August
2000 ordering petitioners reinstatement is rendered moot
and academic because prior to the said date she was
24
already separated from the service, the CSC added.

Petitioner now comes before us, arguing that a writ of

prohibition does not lie to enjoin the implementation of the
directive of the ARMM Governor implementing the CSC
Resolution reinstating her to her former position. 25 She
claims that the trial court gravely erred in taking cognizance
of the petition for prohibition filed by respondent, and failed
to observe the doctrine of primary jurisdiction, considering
that the case, as declared by the trial court itself, involved
personnel actions which are within the CSCs exclusive
26
jurisdiction.
In addition, petitioner contends that by virtue
of the disapproval of her appointment, respondents
appointment to Education Supervisor II was invalidated, and
thus both of them are automatically restored to the their
former positions by operation of law. She further claims that
the AWOL Order of the CSC was previously revoked on 20
July 2000 by then Acting Regional Governor Matalam, and
that the same Memorandum revoked the 24 December 1998
Memorandum of the Executive Secretary, Atty. Randolph C.
27
Parcasio.
Finally, petitioner argues that it is not known
which position she was being declared AWOLwhen she
was declared on AWOL, she was ordered to revert to her
former position as Education Supervisor II, which position
was already occupied by respondent who refused to yield
the position, and she was also prevented from functioning as
Director II. 28
In her Comment, 29 respondent claims that since no appeal
was taken from the AWOL order, it has become final and
executory and thus cannot be revoked by mere issuance of
a Memorandum. 30 She argues that the doctrine of primary
jurisdiction does not apply to the case a quo because it
raises a purely legal question, that is, the propriety of
petitioners assumption of her former position despite having
been declared on AWOL and dropped from the rolls. Due to
the urgency of the situation and the immediacy of the
problem, recourse through the same officials who issued the
assailed memoranda would be futile. 31
The Court is thus tasked to resolve the following issues:
1. Whether a writ of prohibition lies to enjoin the directive of
the ARMM Governor to reinstate petitioner to the position of
Education Supervisor II despite petitioners having been
declared on AWOL and dropped from the roll;
2. Whether the trial court erred in taking cognizance of the
petition for prohibition and whether the filing of the petition
for prohibition violated the doctrine of primary jurisdiction;
3. Whether the AWOL order against petitioner validated
respondents occupancy of the position of Education
Supervisor II;
4. Who, as between petitioner and respondent, is entitled to
the position of Education Supervisor II.
The petition must be denied.
Petitioner cannot be reinstated by mere
directive of the ARMM Regional Governor

The assailed Memorandum issued by ARMM Regional

Governor is reproduced in full, thus:

SUBJECT : Implementation of CSC Resolution No. 96-3101,

and CSC-ARMM Directive Order Dated July 26, 2000

Petitioner argues that the 24 December 1998 Memorandum

finding her to be on AWOL was revoked and rendered moot
by subsequent issuances. We are not persuaded. While it is
true that then Acting Regional Governor Matalam revoked
the 24 December 1998 order of the ARMM Executive
Secretary, he recalled the revocation via his Memorandum
dated 01 August 2006. Thus, the AWOL order dated 24
December 1998 was in full force and effect when ARMM
Regional Governor Misuari issued the assailed 04 August
2000 Memorandum.

DATE : August 4, 2000

Propriety of the Petition for Prohibition

In the highest interest of public service and consistent with

the legal and constitutional precept of promoting social
justice, the above-captioned resolutions are hereby
implemented.

The trial court did not err in taking cognizance of the petition
for prohibition.

TO : TESDA ARMM
Cotabato City

As such, you are hereby directed to re-instate ANDABAI T.

ARIMAO to her former position as Education Supervisor II
pursuant to the foregoing resolution and the provisions of
Sec. 13, Rule VI, Book V of E.O. No, 292 which are further
buttressed by the series of communication of CSC Regional
Office No. XII dated September 10, 1998, October 20, 1998,
November 03, 1998 and December 10, 1998 and directive
order of CSC-ARMM dated July 26, 2000 respectively.
This [M]emorandum shall take effect immediately and shall
take precedence over all memoranda, orders and other
issuances [sic] inconsistent herewith.

The principal purpose for the writ of prohibition is to prevent

an encroachment, excess, usurpation or assumption of
jurisdiction on the part of an inferior court or quasi-judicial
tribunal. It is granted when it is necessary for the orderly
administration of justice, or to prevent the use of the strong
arm of the law in an oppressive or vindictive manner, or to
put a stop to multiplicity of actions. Thus, for a party to be
entitled to a writ of prohibition, he must establish the
following requisites: (a) it must be directed against a tribunal,
corporation, board or person exercising functions, judicial or
ministerial; (b) the tribunal, corporation, board or person has
acted without or in excess of its jurisdiction, or with grave
abuse of discretion; and (c) there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary course
35
of law.

(Signed)
PROF. NUR P. MISUARI
Regional Governor 32
Even a cursory look at the Memorandum shows that the
order of petitioners reinstatement was made in reliance on,
or in implementation of, CSC Resolution No. 96-3101 and
CSC-ARMM Directive Order dated 26 July 2000, both of
which ordained her reinstatement. However, these directives
relied upon by ARMM Regional Governor Misuari were
rendered functus officio by no less than the CSC itself per its
Resolution No. 020743, which, as previously noted, ruled
that the TESDA-ARMM is not under legal obligation to
reinstate petitioner because she was already dropped from
the rolls effective 24 December 1998. CSC Resolution No.
01-0132, ordering the implementation of CSC Resolution No.
96-3101, was issued because petitioner purposely
concealed and withheld from the CSC the information that
33
she had been declared AWOL and dropped from the rolls.
With Resolution No. 020743, CSC Resolution No. 01-0132
was effectively revoked.
Likewise, with the finality of the AWOL order and her having
been dropped from the rolls, petitioner legally lost her right to
the position of Education Supervisor II. In any case, she has
already received from the DECS-ARMM her salaries as
Education Supervisor II for the period October 1996 to 1997,
or the period corresponding to the time the position was still
with the said department. 34

Under Republic Act No. 6734, 36 executive power in the

ARMM is vested in the Regional Governor, who has control
of all the regional executive commissions, boards, bureaus
and offices, and exercises general supervision over the local
government units within the Autonomous Region. 37 The
assailed Memorandum of ARMM Regional Governor Misuari
was presumably issued in the exercise of his power of
control and supervision. However, by ordering the
reinstatement of petitioner to her former position based upon
an outdated CSC Resolution, despite the AWOL order and
her being dropped from the rolls, ARMM Regional Governor
Misuari acted with grave abuse of discretion, amounting to
excess of jurisdiction.
Neither is the petition for prohibition before the trial court
violative of the doctrine of primary jurisdiction. Said doctrine
precludes a court from arrogating unto itself the authority to
resolve a controversy the jurisdiction over which is initially
lodged with an administrative body of special competence. 38
An exception to this rule is when the issue raised is a purely
legal question, well within the competence and the
jurisdiction of the court and not the administrative
39

agency. In the instant case, the legal question of whether

a memorandum of the ARMM Governor, ordering the
reinstatement of an employee declared AWOL and dropped
from the rolls, was issued in excess of jurisdiction is a legal
question which should be resolved by the courts. For the
same reason that the issues to be resolved in this case are
purely legal in nature, respondent need not abide by the
doctrine of exhaustion of administrative remedies. 40
Besides, to allow the matter to remain with the Office of the

ARMM Governor for resolution would be self-defeating and

useless and cause unnecessary delay since it was the same
office which gave the conflicting issuances on petitioners
reinstatement.
Neither petitioner nor respondent
is entitled to the position of Education
Supervisor II
The finality of the disapproval of petitioners promotion, as
well as that of the Order declaring petitioner on AWOL and
dropping her from the rolls, is no longer disputed. Thus, as
found by the CSC in its Resolution No. 020743, TESDA has
no legal obligation to reinstate petitioner to the position of
Education Supervisor II. This, however, should not be
construed as a declaration that respondent is entitled to the
position of Education Supervisor II.
Section 13, Rule 6 of the Omnibus Rules Implementing Book
V, E.O. 292, provides:
All appointments involved in a chain of promotions must be
submitted simultaneously for approval by the Commission.
The disapproval of the appointment of a person proposed to
a higher position invalidates the promotion of those in lower
positions and automatically restores them to their former
positions. However, the affected persons are entitled to the
payment of salaries for services actually rendered at a rate
fixed in their promotional appointments.

appointment which in turn was subject to the outcome of the

protest against it.
Thus, as of 17 October 1998or the date of finality of the
denial of the petition questioning the disapproval of
petitioners appointment as Director IIboth petitioner and
respondent were reverted to their former positions. Petitioner
should have been allowed to re-assume her position of
Education Supervisor II as of the said date, and thereafter
remain in the said office until she was dropped from the rolls
in 1999. Respondent, in turn, should have been made to
return to her former position.
Indeed, for all intents and purposes, respondent became the
Education Supervisor II by virtue of her appointment as such
on 25 July 1995. However, her tenure ended when petitioner
was reverted to the same position on 17 October 1998.
Thus, during respondents occupancy of the position of
Education Supervisor II after petitioners promotional
appointment had been disapproved, respondent should be
deemed a de facto officer only. 43 A de facto officer is "one
who has the reputation of being the officer he assumes and
yet is not a good officer in point of law." He is one who is in
possession of the office and discharging its duties under
color of authority, and by color of authority is meant that
derived from an election or appointment, however irregular
or informal, so that the incumbent is not a mere volunteer. 44
The difference between the basis of the authority of a de jure
officer and that of a de facto officer is that one rests on right,
the other on reputation. 45

SEC. 19. An appointment though contested shall take effect

immediately upon its issuance if the appointee assumes the
duties of the position and the appointee is entitled to receive
the salary attached to the position. However, the
appointment, together with the decision of the department
head shall be submitted to the Commission for appropriate
action within 30 days from the date of its issuance otherwise
the appointment becomes ineffective thereafter. Likewise,
such an appointment shall become ineffective in case the
protest is finally resolved against the protestee, in which
case he shall be reverted to his former position.

In Monroy v. Court of Appeals, et al., 46 this Court ruled that

a rightful incumbent of a public office may recover from a de
facto officer the salary received by the latter during the time
of his wrongful tenure. A de facto officer, not having a good
title, takes the salaries at his risk and must, therefore,
account to the de jure officer for whatever salary he received
during the period of his wrongful tenure. 47 In the instant
case, respondent should account to petitioner for the
salaries she received from the time the disapproval of
petitioners promotion became final, up to the time when
petitioner was declared on AWOL and dropped from the
rolls. However, respondent may be allowed to keep the
emoluments she received during said period, there being no
48
de jure officer at the time,
following our ruling in Civil
Liberties Union v. Executive Secretary, 49 to wit:

It must be noted that while respondents appointment to the

position of Education Supervisor II was approved as
permanent and completed, it was nonetheless made subject
to the outcome of the protest filed against petitioners
appointment. 41 At the back of the appointment, the following
appears:

[I]n cases where there is no de jure officer, a de facto officer

who, in good faith, has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate
action recover the salary, fees and other compensations
attached to the office. 50

This appointment is subject to the outcome of the protest of

Alibai Benito in the appointment of Andabai Arimao former
incumbent to the position. 42

There is no question that respondent discharged the duties

of Education Supervisor II from the time she was appointed
to the position and even after her appointment was
invalidated as a result of the invalidation of petitioners
promotional appointment. In view of the services respondent
rendered to the TESDA and the people of the ARMM, it
would be iniquitous to deny her the salary appertaining to the
position corresponding to the period of her service.

Section 19 of the same rule states:

As a chain reaction of the disapproval of petitioners

promotional appointment as Director II, respondents
appointment to Education Supervisor II was likewise
invalidated. The efficacy of respondents appointment was
dependent on the validity of petitioners promotional

All the same, however, respondent cannot continue her

unauthorized occupancy, notwithstanding the fact that the
position of Education Supervisor II has been vacant since
1999. Absent any showing that she has been reappointed to
the position after petitioner was declared AWOL and
dropped from the rolls, respondent cannot lay a valid claim
thereto.
WHEREFORE, the petition is DENIED and the Decision and
Order dated 16 October 2001 and 31 January 2002,
respectively, of the RTC, 12th Judicial Region, Branch 14
are AFFIRMED.
Respondent is ordered to VACATE the position of Education
Supervisor II, TESDA-ARMM, and turn over to petitioner the
emoluments she received for the position from 17 October
1998 to 17 March 1999.
Costs against petitioner.
SO ORDERED.

G.R. No. 90762 May 20, 1991

LEYTE ACTING VICE-GOVERNOR AURELIO D.
MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in
his capacity as Chief Executive of the Province of Leyte
and Head of SANGGUNIANG PANLALAWIGAN and
Leyte Provincial Treasurer FLORENCIO LUNA,
respondents.
GUTIERREZ, JR., J.:p
This is a motion for reconsideration of the resolution of the
Court dated August 28, 1990 which initially denied the
petition for certiorari and mandamus filed by then Acting
Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28
resolution, the Court stated that Mr. Menzon cannot
successfully assert the right to be recognized as Acting ViceGovernor and, therefore, his designation was invalid. In this
motion, the primary issue is the right to emoluments while
actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988,
by virtue of the fact that no Governor had been proclaimed in
the province of Leyte, the Secretary of Local Government
Luis Santos designated the Vice-Governor, Leopoldo E.
Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a
senior member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the ViceGovernor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto
Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U.
Quintero inquired from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar, Jr., as
to the legality of the appointment of the petitioner to act as
the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary
Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no
provision relating to succession in the Office of the ViceGovernor in case of a temporary vacancy, the appointment
of the petitioner as the temporary Vice- Governor is not
necessary since the Vice-Governor who is temporarily
performing the functions of the Governor, could concurrently
assume the functions of both offices.
As a result of the foregoing communications between Tente
U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang
Panlalawigan, in a special session held on July 7, 1989,
issued Resolution No. 505 where it held invalid the
appointment of the petitioner as acting Vice-Governor of
Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at
present in the Office of the Vice-Governor is
that there is no permanent (sic) nor a
vacancy in said office. The Honorable

Leopoldo E. Petilla assumed the Office of

the Vice-Governor after he took his oath of
office to said position.
WHEREAS, it is the duty of the members of
the Board not only to take cognizance of the
aforesaid official communication of the
Undersecretary, Jacinto T. Rubillar, Jr., but
also to uphold the law.
WHEREAS, on motion of the Honorable
Macario R. Esmas, Jr., duly seconded by
the Honorable Rogelio L. Granados and the
Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to
recognize Honorable Aurelio D. Menzon as
Acting Vice-Governor of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP
Regional Counsel, Atty. Zosimo Alegre, sought clarification
from Undersecretary Jacinto T. Rubillar, Jr. regarding the
June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied
and explained his opinion. The pertinent portion of the letter
reads:
This has reference to your letter dated July
10, 1989, requesting for clarification of our
letter to Provincial Administrator Tente U.
Quintero dated June 22, 1989, which states
in substance, that "there is no succession
provided for in case of temporary vacancy in
the office of the vice-governor and that the
designation of a temporary vice-governor is
not necessary.
We hold the view that the designation
extended by the Secretary of Local
Government in favor of one of the
Sangguniang Panlalawigan Members of
Leyte to temporarily discharge the powers
and duties of the vice-governor during the
pendency of the electoral controversy in the
Office of the Governor, does not contradict
the stand we have on the matter. The fact
that the Sangguniang Panlalawigan member
was temporarily designated to perform the
functions of the vice-governor could not be
considered that the Sangguniang member
succeeds to the office of the latter, for it is
basic that designation is merely an
imposition of additional duties to be
performed by the designee in addition to the
official functions attached to his office.
Furthermore, the necessity of designating an
official to temporarily perform the functions
of a particular public office, would depend on
the discretion of the appointing authority and
the prevailing circumstances in a given area
and by taking into consideration the best
interest of public service.

On the basis of the foregoing and

considering that the law is silent in case of
temporary vacancy, in the Office of the ViceGovernor, it is our view that the peculiar
situation in the Province of Leyte, where the
electoral controversy in the Office of the
Governor has not yet been settled, calls for
the designation of the Sangguniang Member
to act as vice-governor temporarily. (Rollo,
p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar,
the Regional Director of the Department of Local
Government, Region 8, Resurreccion Salvatierra, on July 17,
1989, wrote a letter addressed to the Acting-Governor of
Leyte, Leopoldo E. Petilla, requesting the latter that
Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. The letter states:
In view thereof, please correct previous
actions made by your office and those of the
Sangguniang Panlalawigan which may have
tended to discredit the validity of Atty.
Aurelio Menzon's designation as acting vicegovernor, including the payment of his
salary as Acting Vice-Governor, if he was
deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another
letter to Acting-Governor Petilla, reiterating his earlier
request.
Despite these several letters of request, the Acting Governor
and the Sangguniang Panlalawigan, refused to correct
Resolution No. 505 and correspondingly to pay the petitioner
the emoluments attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this
Court a petition for certiorari and mandamus. The petition
sought the nullification of Resolution No. 505 and for the
payment of his salary for his services as the acting ViceGovernor of Leyte.
In the meantime, however, the issue on the governorship of
Leyte was settled and Adelina Larrazabal was proclaimed
the Governor of the province of Leyte.
During the pendency of the petition, more particularly on
May 16, 1990, the provincial treasurer of Leyte, Florencio
Luna allowed the payment to the petitioner of his salary as
acting Vice-Governor of Leyte in the amount of P17,710.00,
for the actual services rendered by the petitioner as acting
Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed
by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by
virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the province
of Leyte all the emoluments and compensation which he
received while acting as the Vice-Governor of Leyte.

On September 21, 1990, the petitioner filed a motion for

reconsideration of our resolution. The motion prayed that this
Court uphold the petitioner's right to receive the salary and
emoluments attached to the office of the Vice-Governor
while he was acting as such.
The petitioner interposes the following reason for the
allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO
THE EMOLUMENTS FOR HIS SERVICES
RENDERED AS DESIGNATED ACTING
VICE-GOVERNOR
UNDER
THE
PRINCIPLES OF GOOD FAITH. SIMPLE
JUSTICE AND EQUITY.
The controversy basically revolves around two issues: 1)
Whether or not there was a vacancy?; and 2) Whether or not
the Secretary of Local Government has the authority to
make temporary appointments?
The respondents argue that there exists no vacancy in the
Office of the Vice-Governor which requires the appointment
of the petitioner. They further allege that if indeed there was
a need to appoint an acting Vice-Governor, the power to
appoint is net vested in the Secretary of Local Government.
Absent any provision in the Local Government Code on the
mode of succession in case of a temporary vacancy in the
Office of the Vice-Governor, they claim that this constitutes
an internal problem of the Sangguniang Panlalawigan and
was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no
vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy
when there is no person lawfully authorized to assume and
exercise at present the duties of the office. (see Stocking v.
State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on
Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be
readily seen that the office of the Vice-Governor was left
vacant when the duly elected Vice-Governor Leopoldo
Petilla was appointed Acting Governor. In the eyes of the
law, the office to which he was elected was left barren of a
legally qualified person to exercise the duties of the office of
the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla,
notwithstanding his succession to the Office of the Governor,
continued to simultaneously exercise the duties of the ViceGovernor. The nature of the duties of a Provincial Governor
call for a full-time occupant to discharge them. More so when
the vacancy is for an extended period. Precisely, it was
Petilla's automatic assumption to the acting Governorship
that resulted in the vacancy in the office of the ViceGovernor. The fact that the Secretary of Local Government
was prompted to appoint the petitioner shows the need to fill
up the position during the period it was vacant. The
Department Secretary had the discretion to ascertain
whether or not the Provincial Governor should devote all his
time to that particular office. Moreover, it is doubtful if the

Provincial Board, unilaterally acting, may revoke an

appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second
issue of whether or not the Secretary of Local Government
had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of
succession in the event of a temporary vacancy in the Office
of the Vice-Governor. However, the silence of the law must
not be understood to convey that a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a
necessity for the appointment of an acting Vice-Governor.
For about two years after the governatorial elections, there
had been no de jure permanent Governor for the province of
Leyte, Governor Adelina Larrazabal, at that time, had not yet
been proclaimed due to a pending election case before the
Commission on Elections.
The two-year interregnum which would result from the
respondents' view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the
people and in the proper management of the affairs of the
local government of Leyte. Definitely, it is incomprehensible
that to leave the situation without affording any remedy was
ever intended by the Local Government Code.

A vacancy creates an anomalous situation and finds no

approbation under the law for it deprives the constituents of
their right of representation and governance in their own
local government.
In a republican form of government, the majority rules
through their chosen few, and if one of them is incapacitated
or absent, etc., the management of governmental affairs to
that extent, may be hampered. Necessarily, there will be a
consequent delay in the delivery of basic services to the
people of Leyte if the Governor or the Vice-Governor is
missing.
Whether or not the absence of a Vice-Governor would main
or prejudice the province of Leyte, is for higher officials to
decide or, in proper cases, for the judiciary to adjudicate. As
shown in this case where for about two years there was only
an acting Governor steering the leadership of the province of
Leyte, the urgency of filling the vacancy in the Office of the
Vice-Governor to free the hands of the acting Governor to
handle provincial problems and to serve as the buffer in case
something might happen to the acting Governor becomes
unquestionable. We do not have to dwell ourselves into the
fact that nothing happened to acting Governor Petilla during
the two-year period. The contingency of having simultaneous
vacancies in both offices cannot just be set aside. It was
best for Leyte to have a full-time Governor and an acting
Vice-Governor. Service to the public is the primary concern
of those in the government. It is a continuous duty unbridled
by any political considerations.

Under the circumstances of this case and considering the

silence of the Local Government Code, the Court rules that,
in order to obviate the dilemma resulting from an
interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government,
may remedy the situation. We declare valid the temporary
appointment extended to the petitioner to act as the ViceGovernor. The exigencies of public service demanded
nothing less than the immediate appointment of an acting
Vice-Governor.

The appointment of the petitioner, moreover, is in full accord

with the intent behind the Local Government Code. There is
no question that Section 49 in connection with Section 52 of
the Local Government Code shows clearly the intent to
provide for continuity in the performance of the duties of the
Vice-Governor.

The records show that it was primarily for this contingency

that Undersecretary Jacinto Rubillar corrected and
reconsidered his previous position and acknowledged the
need for an acting Vice-Governor.

Section 49:

It may be noted that under Commonwealth Act No. 588 and

the Revised Administrative Code of 1987, the President is
empowered to make temporary appointments in certain
public offices, in case of any vacancy that may occur. Albeit
both laws deal only with the filling of vacancies in appointive
positions. However, in the absence of any contrary provision
in the Local Government Code and in the best interest of
public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in
the present case. The respondents contend that the
provincial board is the correct appointing power. This
argument has no merit. As between the President who has
supervision over local governments as provided by law and
the members of the board who are junior to the vicegovernor, we have no problem ruling in favor of the
President, until the law provides otherwise.

The Local Government Code provides for the mode of

succession in case of a permanent vacancy, viz:

In case a permanent vacancy arises when a

Vice-Governor assumes the Office of the
Governor, . . . refuses to assume office, fails
to qualify, dies, is removed from office,
voluntary
resigns
or
is
otherwise
permanently incapacitated to discharge the
functions of his office the sangguniang
panlalawigan . . . member who obtained the
highest number of votes in the election
immediately preceding, . . . shall assume the
office for the unexpired term of the ViceGovernor. . . .
By virtue of the surroundings circumstance of this case, the
mode of succession provided for permanent vacancies may
likewise be observed in case of a temporary vacancy in the
same office. In this case, there was a need to fill the
vacancy. The petitioner is himself the member of the
Sangguniang Panlalawigan who obtained the highest
number of votes. The Department Secretary acted correctly
in extending the temporary appointment.

In view of the foregoing, the petitioner's right to be paid the

salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be remunerated
to the petitioner, following the example in Commonwealth
Act No. 588 and the Revised Administrative Code, and
pursuant to the proscription against double compensation
must only be such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law
for the Office of the Vice-Governor.
And finally, even granting that the President, acting through
the Secretary of Local Government, possesses no power to
appoint the petitioner, at the very least, the petitioner is a de
facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of
the Vice-Governor under color of a known appointment. As
revealed by the records, the petitioner was appointed by no
less than the alter ego of the President, the Secretary of
Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department
of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The
respondents themselves acknowledged the validity of the
petitioner's appointment and dealt with him as such. It was
only when the controversial Resolution No. 505 was passed
by the same persons who recognized him as the acting ViceGovernor that the validity of the appointment of the petitioner
was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties
attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the principle
of public policy on which the de facto doctrine is based and
basic considerations of justice, it would be highly iniquitous
to now deny him the salary due him for the services he
actually rendered as the acting Vice-Governor of the
province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55
[1974])
WHEREFORE, the COURT hereby GRANTS the motion for
reconsideration. The additional compensation which the
petitioner has received, in the amount exceeding the salary
authorized by law for the position of Senior Board Member,
shall be considered as payment for the actual services
rendered as acting Vice-Governor and may be retained by
him.
SO ORDERED.

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and
CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform;
CARLOS DOMINGUEZ, as Secretary of Agriculture;
LOURDES QUISUMBING, as Secretary of Education,
Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources;
VICENTE V. JAYME, as Secretary of Finance; SEDFREY
ORDOEZ, as Secretary of Justice; FRANKLIN N.
DRILON, as Secretary of Labor and Employment; LUIS
SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F.
BENIGNO, as Press Secretary; JUANITO FERRER, as
Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology;
JOSE CONCEPCION, as Secretary of Trade and
Industry; JOSE ANTONIO GONZALEZ, as Secretary of
Tourism; ALFREDO R.A. BENGZON, as Secretary of
Health; REINERIO D. REYES, as Secretary of
Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and
SOLITA MONSOD, as Head of the National Economic
Development Authority, respondents.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution
dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive
Order No. 284 issued by President Corazon C. Aquino on
July 25, 1987. The pertinent provisions of the assailed
Executive Order are:
Sec. 1. Even if allowed by law or by the
ordinary functions of his position, a member
of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the
Executive Department may, in addition to his
primary position, hold not more than two
positions in the government and government
corporations and receive the corresponding
compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or
committees, or to boards, councils or bodies
of which the President is the Chairman.
Sec. 2. If a member of the cabinet,
undersecretary or assistant secretary or
other appointive official of the Executive
Department holds more positions than what
is allowed in Section 1 hereof, they (sic)
must relinquish the excess position in favor
of the subordinate official who is next in
rank, but in no case shall any official hold

more than two positions other than his

primary position.
Sec. 3. In order to fully protect the interest of
the government in government-owned or
controlled corporations, at least one-third
(1/3) of the members of the boards of such
corporation should either be a secretary, or
undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject
to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution, 2 which provides as
follows:
Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise
provided in this Constitution, hold any other
office or employment during their tenure.
They shall not, during said tenure, directly or
indirectly practice any other profession,
participate in any business, or be financially
interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality
thereof,
including
government-owned
or
controlled
corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the
conduct of their office.
It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding
any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of
Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of
the extraordinary writs of prohibition and mandamus, as well
as a temporary restraining order directing public respondents
therein to cease and desist from holding, in addition to their
primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges
and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund
any and all amounts or benefits that they may have received
from such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoez, construing Section
13, Article VII in relation to Section 7, par. (2), Article IX-B,
5
rendered on July 23, 1987 Opinion No. 73, series of 1987,
declaring that
Cabinet
members,
their
deputies
(undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of

government corporations: (a) when directly provided for in

the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar
Council under Section 8, paragraph 1, Article VIII; or (b) if
allowed by law; or (c) if allowed by the primary functions of
their respective positions; and that on the basis of this
Opinion, the President of the Philippines, on July 25, 1987 or
two (2) days before Congress convened on July 27, 1987:
6
promulgated Executive Order No. 284.
Petitioner Anti-Graft League of the Philippines objects to
both DOJ Opinion No. 73 and Executive Order No. 284 as
they allegedly "lumped together" Section 13, Article VII and
the general provision in another article, Section 7, par. (2),
Article I-XB. This "strained linkage" between the two
provisions, each addressed to a distinct and separate group
of public officers one, the President and her official family,
and the other, public servants in general allegedly
"abolished the clearly separate, higher, exclusive, and
mandatory constitutional rank assigned to the prohibition
against multiple jobs for the President, the Vice-President,
the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to
7
8
lead by example."
Article IX-B, Section 7, par. (2)
provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other office
or employment in the government or any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice
DOJ Opinion No. 73, series of 1987, as further elucidated
and clarified by DOJ Opinion No. 129, series of 1987 9 and
DOJ Opinion No. 155, series of 1988, 10 being the first
official construction and interpretation by the Secretary of
Justice of Section 13, Article VII and par. (2) of Section 7,
Article I-XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive
official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that
Executive Order No. 284, promulgated pursuant to DOJ
Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129,
series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the
primary functions of the public official, but only to the holding
of multiple positions which are not related to or necessarily
included in the position of the public official concerned
(disparate positions).
In sum, the constitutionality of Executive Order No. 284 is
being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than
those provided in the Constitution. According to petitioners,
by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other

office or employment in Government are those provided in

the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par.
(2), Article VII thereof; and (2) the Secretary of Justice is an
ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition
in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil
Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President,
Vice-President, the members of the Cabinet and their
deputies or assistants from holding dual or multiple positions
in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents
lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided
in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as
in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of
Section 3, Article VII or the Secretary of Justice being
designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on
the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the
appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in
Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2),
Article I-XB which, for easy reference is quoted anew, thus:
"Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including governmentowned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration. Thus,
it has been held that the Court in construing a Constitution
should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and
circumstances under which the Constitution was framed.
The object is to ascertain the reason which induced the
framers of the Constitution to enact the particular provision
and the purpose sought to be accomplished thereby, in order
to construe the whole as to make the words consonant to
11
that reason and calculated to effect that purpose.
The practice of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies

or boards of various government agencies and

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

government subsuming both elective and appointive public

officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise
provided in the Constitution itself.

This practice of holding multiple offices or positions in the

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

Moreover, such intent is underscored by a comparison of

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

Particularly odious and revolting to the people's sense of

propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of
the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito
and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A.
Roo of twelve (12) each; Manuel P. Alba, Gilberto O.
Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the
serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions
under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling
points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that
the scandalous practice of Cabinet members holding
multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be
discontinued.
But what is indeed significant is the fact that although
Section 7, Article I-XB already contains a blanket prohibition
against the holding of multiple offices or employment in the

Evidently, from this move as well as in the different

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

It is quite notable that in all these provisions on

disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government
and
government-owned
or
controlled
corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he
President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or
employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase
"in the Government." The prohibition imposed on the
President and his official family is therefore all-embracing
and covers both public and private office or employment.
Going further into Section 13, Article VII, the second
sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the
President and his official family, which prohibitions are not
similarly imposed on other public officials or employees such
as the Members of Congress, members of the civil service in
general and members of the armed forces, are proof of the
intent of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon said
class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be

stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers
and, therefore, more cheeks and restraints on them are
called for because there is more possibility of abuse in their
14
case."
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by law
or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other
words, Section 7, Article I-XB is meant to lay down the
general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is
meant to be the exception applicable only to the President,
the Vice- President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under
Section 7, Article I-XB of the 1987 Constitution. To construe
said qualifying phrase as respondents would have us do,
would render nugatory and meaningless the manifest intent
and purpose of the framers of the Constitution to impose a
stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the
government during their tenure. Respondents' interpretation
that Section 13 of Article VII admits of the exceptions found
in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution
as to when the high-ranking officials of the Executive Branch
from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately
below Assistant Secretary downwards, on the other, may
hold any other office or position in the government during
their tenure.
Moreover, respondents' reading of the provisions in question
would render certain parts of the Constitution inoperative.
This observation applies particularly to the Vice-President
who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the
Constitution, but who as an elective public official under Sec.
7, par. (1) of Article I-XB is absolutely ineligible "for
appointment or designation in any capacity to any public
office or position during his tenure." Surely, to say that the
phrase "unless otherwise provided in this Constitution" found
in Section 13, Article VII has reference to Section 7, par. (1)
of Article I-XB would render meaningless the specific
provisions of the Constitution authorizing the Vice-President
15
to become a member of the Cabinet,
and to act as
President without relinquishing the Vice-Presidency where
the President shall not nave been chosen or fails to qualify.
16
Such absurd consequence can be avoided only by

interpreting the two provisions under consideration as one,

i.e., Section 7, par. (1) of Article I-XB providing the general
rule and the other, i.e., Section 13, Article VII as constituting
the exception thereto. In the same manner must Section 7,
par. (2) of Article I-XB be construed vis-a-vis Section 13,
Article VII.
It is a well-established rule in Constitutional construction that
no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. 17 Sections bearing on
a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution 18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together. 19
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may
make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure,
the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII
is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory,
it is to be understood as intended to be a positive and
unequivocal negation. 21 The phrase "unless otherwise
provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited
in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par.
(2), Article VII; or acting as President in those instances
provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided
by law and as required 22 by the primary functions of said
officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of
additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the
Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24,
1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice,
Labor and Employment and Local Government sit in this

Council, which would then have no reason to exist for lack of

a
chairperson
and
members.
The
respective
undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the
Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither
can his Undersecretaries and Assistant Secretaries chair
these agencies.
The Secretaries of Finance and Budget cannot sit in the
Monetary
Board. 24 Neither can their respective undersecretaries and
assistant secretaries. The Central Bank Governor would
then be assisted by lower ranking employees in providing
policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have
intended such absurd consequences. A Constitution, viewed
as a continuously operative charter of government, is not to
be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if
possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is
not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided
by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from
office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the
office." 27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without
further warrant or appointment. 28 To illustrate, by express
provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of
the Philippine Ports Authority, 29 and the Light Rail Transit
Authority. 30
The Court had occasion to explain the meaning of an exofficio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board, 31 thus: "An examination of section 2
of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need
only be designated by the respective department heads.
With the exception of the representative from the private
sector, they sit ex-officio. In order to be designated they
must already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a
previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that
office. The same is true with respect to the representatives
from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to
those already performed under their original appointments."
32

The term "primary" used to describe "functions" refers to the

order of importance and thus means chief or principal
function. The term is not restricted to the singular but may
33
refer to the plural. The additional duties must not only be
closely related to, but must be required by the official's
primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of
Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime
Industry Authority 34 and the Civil Aeronautics Board.
If the functions required to be performed are merely
incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official,
such additional functions would fall under the purview of "any
other office" prohibited by the Constitution. An example
would be the Press Undersecretary sitting as a member of
the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which
confer on the cabinet official management functions and/or
monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President,
Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective
executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination
among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his
alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure
that the laws are faithfully executed. 35 Without these
additional duties and functions being assigned to the
President and his official family to sit in the governing bodies
or boards of governmental agencies or instrumentalities in
an ex-officio capacity as provided by law and as required by
their primary functions, they would be supervision, thereby
deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional
duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform
the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal office.
It should be obvious that if, say, the Secretary of Finance

attends a meeting of the Monetary Board as an ex-officio

member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in
defining policy in monetary and banking matters, which
come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per them or an
honorarium or an allowance, or some other such
euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on
the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3
of the General Provisions, the exception "unless required by
the functions of his position," 36 express reference to certain
high-ranking appointive public officials like members of the
37
Cabinet were made.
Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed
out that there are instances when although not required by
current law, membership of certain high-ranking executive
officials in other offices and corporations is necessary by
reason of said officials' primary functions. The example given
by Commissioner Monsod was the Minister of Trade and
Industry. 38
While this exchange between Commissioners Monsod and
Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the
official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this exception
is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then
was Section 3 of Committee Resolution No. 531 which was
the proposed article on General Provisions. 39 At that time,
the article on the Civil Service Commission had been
approved on third reading on July 22, 1986, 40 while the
article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier
approved on third reading on August 26, 1986. 41 It was only
after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B
and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general
principles which would serve as constitutional guidelines in
the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited
phrase "primary functions" as the basis of an exception to
the general rule covering all appointive public officials. Had
the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have reworded said Section 13 to conform to the wider exceptions
provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B
on the Civil Service Commission.
That this exception would in the final analysis apply also to
the President and his official family is by reason of the legal

principles governing additional functions and duties of public

officials rather than by virtue of Section 7, par. 2, Article IX-B
At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by
the primary functions may be considered as not constituting
"any other office."
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail 42 as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear.
Debates in the constitutional convention "are of value as
showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk,
much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law.
We think it safer to construe the constitution from what
appears upon its face." 43 The proper interpretation therefore
depends more on how it was understood by the people
adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points,
that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or
employment in the government, except in those cases
specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an
ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet
members (then called Ministers) as examples during the
debate and deliberation on the general rule laid down for all
appointive officials should be considered as mere personal
opinions which cannot override the constitution's manifest
intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII
in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the government
and government corporations, Executive Order No. 284
actually allows them to hold multiple offices or employment
in direct contravention of the express mandate of Section 13,
Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution
itself.
The Court is alerted by respondents to the impractical
consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet
members would be stripped of their offices held in an exofficio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, exofficio posts held by the executive official concerned without
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the

constitutional prohibition. With respect to other offices or

employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to
say that the feared impractical consequences are more
apparent than real. Being head of an executive department
is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department
head's ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result
in haphazardness and inefficiency. Surely the advantages to
be derived from this concentration of attention, knowledge
and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that
may be gained from a department head spreading himself
too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm,
the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or
employment, as herein defined, in the government, including
government-owned or controlled corporations and their
subsidiaries. With respect to the other named respondents,
the petitions have become moot and academic as they are
no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents
may be considered de facto officers and as such entitled to
emoluments for actual services rendered. 46 It has been held
that "in cases where there is no de jure, officer, a de facto
officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any
one for such services. 47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore
be retained by them.
WHEREFORE, subject to the qualification above-stated, the
petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado
and Davide, Jr., JJ., concur.
Sarmiento and Grio-Aquino, JJ., took no part.

G.R. No. 120193 March 6, 1996

LUIS MALALUAN, petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH
EVANGELISTA, respondents.
HERMOSISIMA, JR., J.:p
Novel is the situation created by the decision of the
Commission on Elections which declared the winner in an
election contest and awarded damages, consisting of
attorney's fees, actual expenses for xerox copies, unearned
salary and other emoluments for the period, from March,
1994 to April, 1995, en masse denominated as actual
damages, notwithstanding the fact that the electoral
controversy had become moot and academic on account of
the expiration of the term of office of the Municipal Mayor of
Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a
prayer for the issuance of a temporary restraining order and
writ of preliminary injunction, seeking the review of the
decision en banc 1 of the Commission of Elections
(COMELEC) denying the motion for reconsideration of the
decision 2 of its First Division, 3 which reversed the decision 4
of the Regional Trial Court 5 in the election case 6 involving
the herein parties. While the Regional Trial Court had found
petitioner Luis Malaluan to be the winner of the elections for
the position of Municipal Mayor of Kidapawan, North
Cotabato, the COMELEC, on the contrary, found private
respondent Joseph Evangelista to be the rightful winner in
said elections.
Petitioner Luis Malaluan and private respondent Joseph
Evangelista were both mayoralty candidates in the
Municipality of Kidapawan, North Cotabato, in the
Synchronized National and Local Elections held on May 11,
1992. Private respondent Joseph Evangelista was
proclaimed by the Municipal Board of Canvassers as the
duly elected Mayor for having garnered 10,498 votes as
against petitioner's 9,792 votes. Evangelista was, thus, said
to have a winning margin of 706 votes. But, on May 22,
1992, petitioner filed an election protest with the Regional
Trial Court contesting 64 out of the total 181 precincts of the
said municipality. The trial court declared petitioner as the
duly elected municipal mayor of Kidapawan, North Cotabato
with a plurality of 154 votes. Acting without precedent, the
court found private respondent liable not only for Malaluan's
protest expenses but also for moral and exemplary damages
and attorney's fees. On February 3, 1994, private
respondent appealed the trial court decision to the
COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner
filed a motion for execution pending appeal. The motion was
granted by the trial court, in an order, dated March 8, 1994,
after petitioner posted a bond in the amount of P500,000.00.
By virtue of said order, petitioner assumed the office of
Municipal Mayor of Kidapawan, North Cotabato, and
exercised the powers and functions of said office. Such
exercise was not for long, though. In the herein assailed
decision adverse to Malaluan's continued governance of the
Municipality of Kidapawan, North Cotabato, the First Division

of the Commission on Elections (COMELEC) ordered

Malaluan to vacate the office, said division having found and
so declared private respondent to be the duly elected
Municipal Mayor of said municipality. The COMELEC en
banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a
consequence.
It is significant to note that the term of office of the local
officials elected in the May, 1992 elections expired on June
30, 1995. This petition, thus, has become moot and
academic insofar as it concerns petitioner's right to the
mayoralty seat in his municipality 7 because expiration of the
term of office contested in the election protest has the effect
8
of rendering the same moot and academic.
When the appeal from a decision in an election case has
already become moot, the case being an election protest
involving the office of mayor the term of which had expired,
the appeal is dismissible on that ground, unless the
rendering of a decision on the merits would be of practical
value. 9 This rule we established in the case of Yorac vs.
Magalona 10 which we dismissed because it had been
mooted by the expiration of the term of office of the
Municipal Mayor of Saravia, Negros Occidental. This was
the object of contention between the parties therein. The
recent case of Atienza vs. Commission on Elections, 11
however, squarely presented the situation that is the
exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac vs.
Magalona as authority for his main
proposition is grossly inappropriate and
misses the point in issue. The sole question
in that case centered on an election protest
involving the mayoralty post in Saravia,
Negros Occidental in the general elections
of 1955, which was rendered moot and
academic by the expiration of the term of
office in December, 1959. It did not involve a
monetary award for damages and other
expenses incurred as a result of the election
protest. In response to the petitioner's
contention that the issues presented before
the court were novel and important and that
the appeal should not be dismissed, the
Court held citing the same provision of
the Rules of Court upon which petitioner
staunchly places reliance that a decision
on the merits in the case would have no
practical value at all, and forthwith dismissed
the case for being moot. That is not the case
here. In contradistinction to Yorac, a
decision on the merits in the case at bench
would clearly have the practical value of
either sustaining the monetary award for
damages or relieving the private respondent
from having to pay the amount thus
awarded. 12

Indeed, this petition appears now to be moot and academic

because the herein parties are contesting an elective post to
which their right to the office no longer exists. However, the
question as to damages remains ripe for adjudication. The
COMELEC found petitioner liable for attorney's fees, actual
expenses for xerox copies, and unearned salary and other
emoluments from March, 1994 to April, 1995, en masse
denominated as actual damages, default in payment by
petitioner of which shall result in the collection of said
amount from the bond posted by petitioner on the occasion
of the grant of his motion for execution pending appeal in the
trial court. Petitioner naturally contests the propriety and
legality of this award upon private respondent on the ground
that said damages have not been alleged and proved during
trial.
What looms large as the issue in this case is whether or not
the COMELEC gravely abused its discretion in awarding the
aforecited damages in favor of private respondent.
The Omnibus Election Code provides that "actual or
compensatory damages may be granted in all election
contests or in quo warranto proceedings in accordance with
13
law."
COMELEC Rules of Procedure provide that "in all
election contests the Court may adjudicate damages and
attorney's fees as it may deem just and as established by the
evidence if the aggrieved party has included such claims in
his pleadings." 14 This appears to require only that the
judicial award of damages be just and that the same be
borne out by the pleadings and evidence The overriding
requirement for a valid and proper award of damages, it
must be remembered, is that the same is in accordance with
law, specifically, the provisions of the Civil Code pertinent to
damages.
Article 2199 of the Civil Code mandates that "except as
provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages." The Civil
Code further prescribes the proper setting for allowance of
actual or compensatory damages in the following provisions:
Art. 2201. In contracts and quasi-contracts,
the damages for which the obligor who
acted in good faith is liable shall be those
that are the natural and probable
consequences of the breach of the
obligation, and which the parties have
foreseen or could have reasonably foreseen
at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton
attitude, the obliger shall be responsible for
all damages which may be reasonably
attributed to the non-performance of the
obligation.
Art. 2202. In crimes and quasi-delicts, the
defendant shall be liable for all damages
which are the natural and probable
consequences of the act or omission
complained of. It is not necessary that such

damages have been foreseen or could have

reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are
appropriate only in breaches of obligations in cases of
contracts and quasi-contracts and on the occasion of crimes
and quasi-delicts where the defendant may be held liable for
all damages the proximate cause of which is the act or
omission complained of, the monetary claim of a party in an
election case must necessarily be hinged on either a
contract or a quasi-contract or a tortious act or omission or a
crime, in order to effectively recover actual or compensatory
damages. 15 In the absence of any or all of these, "the
claimant must be able to point out a specific provision of law
authorizing a money claim for election protest expenses
against the losing party" 16. For instance, the claimant may
cite any of the following provisions of the Civil Code under
the chapter on human relations, which provisions create
obligations not by contract, crime or negligence, but directly
by law:
Art. 19. Every person must in the exercise of
his rights and in the performance of his
duties, act with justice, give everyone his
due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to
another, shall indemnify the latter for the
same.
xxx xxx xxx
Art. 32. Any public officer or employee, or
any private individual, who directly or
indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the
following rights and liberties of another
person shall be liable to the latter for
damages:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article,
whether or not the defendant's act or
omission constitutes a criminal offense, the
aggrieved party has a right to commence an
entirely separate and distinct civil action for
damages, and for other relief. . . . 17
Claimed as part of the damages to which private respondent
is allegedly entitled to, is P169,456.00 constituting salary
and other emoluments from March, 1994 to April, 1995 that
would have accrued to him had there not been an execution
of the trial court's decision pending appeal therefrom in the
COMELEC.
The long-standing rule in this jurisdiction is that
notwithstanding his subsequent ouster as a result of an
election protest, an elective official who has been proclaimed
by the COMELEC as winner in an electoral contest and who

assumed office and entered into the performance of the

duties of that office, is entitled to the compensation,
emoluments and allowances legally provided for the position.
18
We ratiocinated in the case of Rodriguez vs. Tan that:
This is as it should be. This is in keeping
with the ordinary course of events. This is
simple justice. The emolument must go to
the person who rendered the service unless
the contrary is provided. There is no
averment in the complaint that he is linked
with any irregularity vitiating his election.
This is the policy and the rule that has been
followed consistently in this jurisdiction in
connection with positions held by persons
who had been elected thereto but were later
ousted as a result of an election protest. The
right of the persons elected to compensation
during their incumbency has always been
recognized. We cannot recall of any
precedent wherein the contrary rule has
19
been upheld.
In his concurring opinion in the same case, however,
Justice Padilla equally stressed that, while the
general rule is that the ousted elective official is not
obliged to reimburse the emoluments of office that
he had received before his ouster, he would be
liable for damages in case he would be found
responsible for any unlawful or tortious acts in
relation to his proclamation. We quote the pertinent
portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or
indirectly, had committed unlawful or tortious
acts which led to and resulted in his
proclamation as senator-elect, when in truth
and in fact he was not so elected, he would
be answerable for damages. In that event
the salary, fees and emoluments received
by or paid to him during his illegal
incumbency would be a proper item of
recoverable damage. 20
The criterion for a justifiable award of election
protest expenses and salaries and emoluments,
thus, remains to be the existence of a pertinent
breach of obligations arising from contracts or quasicontracts, tortious acts, crimes or a specific legal
provision authorizing the money claim in the context
of election cases. Absent any of these, we could not
even begin to contemplate liability for damages in
election cases, except insofar as attorney's fees are
concerned, since the Civil Code enumerates the
specific instances when the same may be awarded
by the court.
Art. 2208. In the absence of stipulation,
attorney's fees and expenses of litigation,
other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;

(2) When the defendant's act or omission

has compelled the plaintiff to litigate with
third persons or to incur expenses to protect
his interest;
(3) In criminal cases of
prosecution against the plaintiff;

malicious

(4) In case of a clearly unfounded civil action

or proceeding against the plaintiff;
(5) Where the defendant acted in gross and
evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of
household helpers, laborers and skilled
workers;
(8) In actions for indemnity under workmen's
compensation and employer's liability laws;
(9) In a separate civil action to recover civil
liability arising from a crime;
(10) When at least double judicial costs are
awarded;
(11) In any other case where the court
deems it just and equitable that attorney's
fees and expenses of litigation should be
recovered. 21
Given the aforecited laws, and jurisprudence on the matter
at issue, let us now look into the basis of respondent
COMELEC for awarding actual damages to private
respondent in the form of reimbursement for attorney's fees,
actual expenses for xerox copies, and salary and other
emoluments that should have accrued to him from March,
1994 to April, 1995 had the RTC not issued an order for
execution pending appeal.
The First Division of the COMELEC ruled on private
respondent's claim for actual or compensatory damages in
this wise:
. . . under the present legal setting, it is more
difficult than in the past to secure an award
of actual or compensatory damages either
against the protestant or the protestee
because of the requirerments of the law.
In the instant case, however, We are
disposed to conclude that the election
protest filed by the protestant is clearly
unfounded. As borne out by the results of
the appreciation of ballots conducted by this
Commission, apparently the protest was
filed in bad faith without sufficient cause or

has been filed for the sole purpose of

molesting the protestee-appellant for which
he incurred expenses. The erroneous ruling
of the Court which invalidated ballots which
were clearly valid added more injury to the
protestee-appellant. This would have been
bearable since he was able to perfect his
appeal to this Commission. The final blow,
however, came when the Court ordered the
execution of judgment pending appeal
which, from all indications, did not comply
with the requirements of Section 2, Rule 39
of the Rules of Court. There was no good
and special reason at all to justify the
execution of judgment pending appeal
because the protestee's winning margin was
149 votes while that of the protestant
after the Court declared him a winner was
only a margin of 154 votes. Clearly, the
order of execution of judgment pending
appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the
following:
1. Actual damages representing attorney's
fees for the new counsel who handled the
Appeal and the Petition for Certiorari before
the Court of Appeals . . . P372,500.00
2. Actual expenses for xerox copying of
Appellants Brief and the annexes (14 copies
at P1.50 . . . P11,235.00
3. Actual expenses for xerox copying of
ballots . . . P3,919.20
4. Actual damages for loss of salary and
other emoluments since March 1994 as per
attached Certification issued by the
Municipal Account of Kidapawan . . .
P96,832.00 (up to October 1994 only)
Under Article 2208 of the New Civil Code
attorney's fees and expenses of litigation
can be recovered (as actual damages) in the
case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio
Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724)
disallowed recovery of salaries and
allowances (as damages) from elected
officials who were later ousted, under the
theory that persons elected has (sic) a right
to compensation during their incumbency,
the instant case is different. The protesteeappellant was the one elected. He was
ousted not by final judgment bur by an order
of execution pending appeal which was
groundless and issued with grave abuse of
discretion. Protestant-appellee occupied the
position in an illegal manner as a usurper
and, not having been elected to the office,
but merely installed through a baseless

court order, he certainly had no right to the

salaries and emoluments of the office.
Actual
damages
in
the
form
of
reimbursement
for
attorney's
fees
(P372,500.00), actual expenses for xerox
copies (P15,154.00), unearned salary and
other emoluments from March 1994 to April
1995 or 14 months at P12,104.00 a month
(P169,456.00), totalled P557,110.00. To
(sic) this amount, however, P300,000.00
representing that portion of attorney's fees
denominated as success fee' must be
deducted this being premised on a
contingent event the happening of which
was uncertain from the beginning. Moral
damages and exemplary damages claimed
are, of course, disallowed not falling within
the purview of Section 259 of the Omnibus
Election Code.
It goes without saying that if the protestantappellee fails to pay the actual damages of
P257,110.00, the amount will be assessed,
levied and collected from the bond of
P500,000.00 which he put up before the
Court
as
a condition for the issuance of the order of
execution of judgment pending appeal. 22
Petitioner filed a motion for reconsideration of the aforecited
decision on March 29, 1995. The COMELEC en banc,
however, did not find any new matter substantial in nature,
persuasive in character or sufficiently provocative to compel
reconsideration of said decision and accordingly affirmed in
toto the said decision. Hence, this petition raises, among
others, the issue now solely remaining and in need of final
adjudication in view of the mootness of the other issues
anent petitioner's right to the contested office the term for
which has already expired.
We have painstakingly gone over the records of this case
and we can attribute to petitioner no breach of contract or
quasi-contract; or tortious act nor crime that may make him
liable for actual damages. Neither has private respondent
been "able to point out to a specific provision of law
authorizing a money claim for election protest expenses
23
against the losing party."
We find respondent COMELEC's reasoning in awarding the
damages in question to be fatally flawed. The COMELEC
found the election protest filed by the petitioner to be clearly
unfounded because its own appreciation of the contested
ballots yielded results contrary to those of the trial court.
Assuming, ex gratia argumentis, that this is a reasonable
observation not without basis, it is nonetheless fallacious to
conclude a malicious intention on the part of petitioner to
molest private respondent on the basis of what respondent
COMELEC perceived as an erroneous ruling of the trial
court. In other words, the actuations of the trial court, after
the filing of a case before it, are its own, and any alleged
error on its part does not, in the absence of clear proof,
make the suit "clearly unfounded" for which the complainant
ought to be penalized. Insofar as the award of protest

expenses and attorney's fees are concerned, therefore we

find them to have been awarded by respondent COMELEC
without basis, the election protest not having been a clearly
unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting
execution of judgment pending appeal to be defective
because of alleged non-compliance with the requirement
24
that there be a good and special reason
to justify
execution pending appeal. We, however, find that the trial
court acted judiciously in the exercise of its prerogatives
under the law in issuing the order granting execution
pending appeal. First, it should be noted that the applicability
of the provisions of the Rules of Court, relating to execution
pending appeal, has ceased to be debatable after we
definitively ruled in Garcia vs. de Jesus 25 that "Section 2,
Rule 39 of the Rules of Court, which allows Regional Trial
Courts to order executions pending appeal upon good
reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by
them." 26 It is not disputed that petitioner filed a bond in the
amount of P500,000.00 as required under the Rules of
Court.
It is also now a settled rule that "as much recognition should
be given to the value of the decision of a judicial body as a
basis for the right to assume office as that given by law to
the proclamation made by the Board of Canvassers." 27
. . . Why should the proclamation by the
board of canvassers suffice as basis of the
right to assume office, subject to future
contingencies attendant to a protest, and not
the decision of a court of justice? Indeed . . .
the board of canvassers is composed of
persons who are less technically prepared to
make an accurate appreciation of the
ballots, apart from their being more apt to
yield extraneous considerations . . . the
board must act summarily, practically raising
(sic) against time, while, on the other hand,
the judge has the benefit of all the evidence
the parties can offer and of admittedly better
technical preparation and background, apart
from his being allowed ample time for
conscientious study and mature deliberation
28
before rendering judgment . . . .
Without evaluating the merits of the trial court's
actual appreciation of the ballots contested in the
election protest, we note on the face of its decision
that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting
experts which findings private respondent did not
even bother to rebut. We thus see no reason to
disregard the presumption of regularity in the
performance of official duty on the part of the trial
court judge. Capping this combination of
circumstances which impel the grant of immediate
execution is the undeniable urgency involved in the
political situation in the Municipality of Kidapawan,
North Cotabato. The appeal before the COMELEC
would undoubtedly cause the political vacuum in
said municipality to persist, and so the trial court

reasonably perceived execution pending appeal to

be warranted and justified. Anyway, the bond posted
by petitioner could cover any damages suffered by
any aggrieved party. It is true that mere posting of a
bond is not enough reason to justify execution
pending appeal, but the nexus of circumstances
aforechronicled considered together and in relation
to one another, is the dominant consideration for the
29
execution pending appeal.
Finally, we deem the award of salaries and other
emoluments to be improper and lacking legal sanction.
Respondent COMELEC ruled that inapplicable in the instant
30
case is the ruling in Rodriguez vs. Tan
because while in
that case the official ousted was the one proclaimed by the
COMELEC, in the instant case, petitioner was proclaimed
winner only by the trial court and assumed office by virtue of
an order granting execution pending appeal. Again,
respondent COMELEC sweepingly concluded, in justifying
the award of damages, that since petitioner was adjudged
the winner in the elections only by the trial court and
assumed the functions of the office on the strength merely of
an order granting execution pending appeal, the petitioner
occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a
usurper is one who undertakes to act officially without any
color of right, 31 the petitioner exercised the duties of an
elective office under color of election thereto. 32 It matters not
that it was the trial court and not the COMELEC that
declared petitioner as the winner, because both, at different
stages of the electoral process, have the power to so
proclaim winners in electoral contests. At the risk of
sounding repetitive, if only to emphasize this point, we must
reiterate that the decision of a judicial body is no less a basis
than the proclamation made by the COMELEC-convened
Board of Canvassers for a winning candidate's right to
assume office, for both are undisputedly legally sanctioned.
We deem petitioner, therefore, to be a "de facto officer who,
in good faith, has had possession of the office and had
discharged the duties pertaining thereto" 33 and is thus
"legally entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code
only provides for the granting in election cases of actual and
compensatory damages in accordance with law. The
victorious party in an election case cannot be indemnified for
expenses which he has incurred in an electoral contest in
the absence of a wrongful act or omission or breach of
obligation clearly attributable to the losing party. Evidently, if
any damage had been suffered by private respondent due to
the execution of judgment pending appeal, that damage may
be said to be equivalent to damnum absque injuria, which is,
damage without injury, or damage or injury inflicted without
injustice, or loss or damage without violation of a legal right,
or a wrong done to a man for which the law provides no
remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While
we uphold the COMELEC decision dated May 5, 1995 that
private respondent Joseph Evangelista is the winner in the
election for mayor of the Municipality of Kidapawan, North
Cotabato, that portion of the decision is deemed moot and
academic because the term of office for mayor has long

expired. That portion of the decision awarding actual

damages to private respondent Joseph Evangelista is
hereby declared null and void for having been issued in
grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.
Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and
Panganiban, JJ., concur.

G.R. No. 111243 May 25, 1994

JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M.
ENRIQUEZ III, respondents

appointment to the said position is not among the

appointments which have to be confirmed by the
Commission on Appointments, citing Section 16 of Article VII
of the Constitution which provides that:
Sec. 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the
executive departments, ambassadors, other
public ministers and consuls, or officers of
the armed forces from the rank of colonel or
naval captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other
officers of
the Government whose
appointments are not otherwise provided for
by law, and those whom he may be
authorized by law to appoint. The Congress
may, by law, vest the appointment of other
officers lower in rank in the President alone,
in the courts, or in the heads of department,
agencies, commissions, or boards . . .
(Emphasis supplied).

QUIASON, J.:
This is a petition for prohibition filed by petitioner as a
"taxpayer," questioning the appointment of respondent
Gabriel Singson as Governor of the Bangko Sentral Ng
Pilipinas for not having been confirmed by the Commission
on Appointments. The petition seeks to enjoin respondent
Singson from the performance of his functions as such
official until his appointment is confirmed by the Commission
on Appointments and respondent Salvador M. Enriquez,
Secretary of Budget and Management, from disbursing
public funds in payment of the salaries and emoluments of
respondent Singson.
I
Respondent Singson was appointed Governor of the Bangko
Sentral by President Fidel V. Ramos on July 2, 1993,
effective on July 6, 1993 (Rollo, p. 10).

Respondents also aver that the Bangko Sentral has its own
budget and accordingly, its budgetary requirements are not
subject to the provisions of the General Appropriations Act.

Petitioner argues that respondent Singson's appointment is

null and void since it was not submitted for confirmation to
the Commission on Appointments. The petition is anchored
on the provisions of Section 6 of R.A. No. 7653, which
established the Bangko Sentral as the Central Monetary
Authority of the Philippines. Section 6, Article II of R.A. No.
7653 provides:

We dismiss the petition.

Sec. 6. Composition of the Monetary Board.

The powers and functions of the Bangko
Sentral shall be exercised by the Bangko
Sentral Monetary Board, hereafter referred
to as the Monetary Board, composed of
seven (7) members appointed by the
President of the Philippines for a term of six
(6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral,
who shall be the Chairman of the Monetary
Board. The Governor of the Bangko Sentral
shall be head of a department and his
appointment shall be subject to confirmation
by the Commission on Appointments.
Whenever the Governor is unable to attend
a meeting of the Board, he shall designate a
Deputy Governor to act as his alternate:
Provided, That in such event, the Monetary
Board shall designate one of its members as
acting Chairman . . . (Emphasis supplied).
In their comment, respondents claim that Congress
exceeded its legislative powers in requiring the confirmation
by the Commission on Appointments of the appointment of
the Governor of the Bangko Sentral. They contend that an

II
The instant petition is in the nature of a quo warranto
proceeding as it seeks the ouster of respondent Singson and
alleges that the latter is unlawfully holding or exercising the
powers of Governor of the Bangko Sentral (Cf. Castro v. Del
Rosario, 19 SCRA 196 [1967]). Such a special civil action
can only be commenced by the Solicitor General or by a
"person claiming to be entitled to a public office or position
unlawfully held or exercised by another" (Revised Rules of
Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we
held that the petitioner therein, who did not aver that he was
entitled to the office of the City Engineer of Cabanatuan City,
could not bring the action for quo warranto to oust the
respondent from said office as a mere usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E.
910, it was held that the question of title to an office, which
must be resolved in a quo warranto proceeding, may not be
determined in a suit to restrain the payment of salary to the
person holding such office, brought by someone who does
not claim to be the one entitled to occupy the said office.
It is obvious that the instant action was improvidently brought
by petitioner. To uphold the action would encourage every
disgruntled citizen to resort to the courts, thereby causing
incalculable mischief and hindrance to the efficient operation
of the governmental machinery (See Roosevelt v. Draper, 7
Abb. Pr. 108, 23 N.Y. 218).

Its capstone having been removed, the whole case of

petitioner collapses. Hence, there is no need to resolve the
question of whether the disbursement of public funds to pay
the salaries and emoluments of respondent Singson can be
enjoined. Likewise, the Court refrains from passing upon the
constitutionality of Section 6, R.A. No. 7653 in deference to
the principle that bars a judicial inquiry into a constitutional
question unless the resolution thereof is indispensable for
the determination of the case (Fernandez v. Torres, 215
SCRA 489 [1992]).
However for the information of all concerned, we call
attention to our decision in Calderon v. Carale, 208 SCRA
254 (1992), with Justice Isagani A. Cruz dissenting, where
we ruled that Congress cannot by law expand the
confirmation powers of the Commission on Appointments
and require confirmation of appointment of other government
officials not expressly mentioned in the first sentence of
Section 16 of Article VII of the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement
as to costs.
SO ORDERED.

G.R. No. 131977 February 4, 1999

PEDRO MENDOZA, petitioner,
vs.
RAY ALLAS and GODOFREDO OLORES, respondents.
PUNO, J.:
Before us, petitioner prays for the execution of the decision
of the trial court 1 granting his petition for quo warranto which
ordered his reinstatement as Director III, Customs
Intelligence and Investigation Service, and the payment of
his back salaries and benefits.
Petitioner Pedro Mendoza joined the Bureau of Customs in
1972. He held the positions of Port Security Chief from
March 1972 to August 1972, Deputy Commissioner of
Customs from August 1972 to September 1975, Acting
Commissioner of Customs from September 1975 to April
1977 and Customs Operations Chief I from October 1987 to
2
February 1988. On March 1, 1988, he was appointed
Customs Service Chief of the Customs Intelligence and
Investigation Service (CIIS). In 1989, the position of
Customs Service Chief was reclassified by the Civil Service
as "Director III" in accordance with Republic Act No. 6758
and National Compensation Circular No. 50. Petitioner's
position was thus categorized as "Director III, CIIS" and he
discharged the function and duties of said office.
On April 22, 1993, petitioner was temporarily designated as
Acting District Collector, Collection District X, Cagayan de
Oro City. In his place, respondent Ray Allas was appointed
as "Acting Director III" of the CIIS. Despite petitioner's new
assignment as Acting District Collector, however, he
continued to receive the salary and benefits of the position of
Director III.
In September 1994, petitioner received a letter from Deputy
Customs Commissioner Cesar Z. Dario, informing him of his
termination from the Bureau of Customs, in view of
respondent Allas' appointment as Director III by President
Fidel V. Ramos. The pertinent portion of the letter reads:
Effective March 4, 1994, Mr. Ray Allas was
appointed Director III by President Fidel V.
Ramos and as a consequence, [petitioner's]
services were terminated without prejudice
to [his] claim for all government benefits due
[him].
Attached to the letter was the appointment of
respondent Ray Allas as "Director III, CIIS, Bureau
of Customs, vice Pedro Mendoza."
Petitioner wrote the Customs Commissioner demanding his
reinstatement with full back wages and without loss of
seniority rights. No reply was made.
On December 2, 1994, petitioner filed a petition for quo
warranto against respondent Allas before the Regional Trial
3
Court, Paranaque, Branch 258. The case was tried and on
September 11, 1995, a decision was rendered granting the
petition. The court found that petitioner was illegally

terminated from office without due process of law and in

violation of his security of tenure, and that as he was
deemed not to have vacated his office, the appointment of
respondent Allas to the same office was void ab initio. The
court ordered the ouster of respondent Allas from the
position of Director III, and at the same time directed the
reinstatement of petitioner to the same position with payment
of full back salaries and other benefits appurtenant thereto.
Respondent Allas appealed to the Court of Appeals. On
February 8, 1996, while the case was pending before said
court, respondent Allas was promoted by President Ramos
to the position of Deputy Commissioner of Customs for
Assessment and Operations. As a consequence of this
promotion, Petitioner moved to dismiss respondent's appeal
as having been rendered moot and academic. The Court of
Appeals granted the motion and dismissed the case
accordingly. The order of dismissal became final and entry of
judgment was made on March 19, 1996. 4
On May 9, 1996, petitioner filed with the court a quo a
Motion for Execution of its decision. On July 24, 1996, the
court denied the motion on the ground that the contested
position vacated by respondent Allas was now being
occupied by respondent Godofredo Olores who was not a
party to the quo warranto petition. 5
Petitioner filed a special civil action for certiorari and
mandamus with the Court of Appeals questioning the order
of the trial court. 6 On November 27, 1997, the Court of
7
Appeals dismissed the petition. Hence, this recourse.
Petitioner claims that:
The Court of Appeals grossly erred in
holding that a writ of execution may no
longer be issued, considering that
respondent Olores who was not a party to
the case now occupies the subject position. 8
The instant petition arose from a special civil action for quo
warranto under Rule 66 of the Revised Rules of Court. Quo
warranto is a demand made by the state upon some
individual or corporation to show by what right they exercise
some franchise or privilege appertaining to the state which,
according to the Constitution and laws of the land, they
cannot legally exercise except by virtue of a grant or
authority from the state. 9 In other words, a petition for quo
warranto is a proceeding to determine the right of a person
to the use or exercise of a franchise or office and to oust the
holder from its enjoyment, if his claim is not well-founded, or
10
if he has forfeited his right to enjoy the privilege.
The
action may be commenced for the Government by the
Solicitor General or the fiscal 11 against individuals who
usurp a public office, against a public officer whose acts
constitute a ground for the forfeiture of his office, and against
an association which acts as a corporation without being
12
legally incorporated. The action may also be instituted by
an individual in his own name who claims to be entitled to
the public office or position usurped or unlawfully held or
exercised by another. 13
Where the action is filed by a private person, he must prove
that he is entitled to the controverted position, otherwise

respondent has a right to the undisturbed possession of the

office. 14 If the court finds for the respondent, the judgment
should simply state that the respondent is entitled to the
15
office.
If, however, the court finds for the petitioner and
declares the respondent guilty of usurping, intruding into, or
unlawfully holding or exercising the office, judgment may be
rendered as follows:
Sec. 10. Judgment where usurpation found.
When the defendant is found guilty of
usurping, intruding into, or unlawfully holding
or exercising an office, position, right,
privilege, or franchise, judgment shall be
rendered that such defendant be ousted and
altogether excluded therefrom, and that the
plaintiff or relator, as the case may be,
recover his costs. Such further judgment
may be rendered determining the respective
rights in and to the office, position, right,
privilege, or franchise of all the parties to the
action as justice requires.
If it is found that the respondent or defendant is
usurping or intruding into the office, or unlawfully
holding the same, the court may order:
(1) The ouster and exclusion of
defendant from office;

the

(2) The recovery of costs by plaintiff or

relator;
(3) The determination of the respective
rights in and to the office, position, right,
privilege or franchise of all the parties to the
action as justice requires. 16
The character of the judgment to be rendered in quo
warranto rests to some extent in the discretion of the court
and on the relief sought. 17 In the case at bar, petitioner
prayed for the following relief:
WHEREFORE, it is respectfully prayed that
respondent be ousted and altogether
excluded from the position of Director III,
Customs Intelligence and Investigation
Service of the Bureau of Customs, and
petitioner be seated to the position as the
one legally appointed and entitled thereto.
Other reliefs, just or equitable in the
premises, are likewise prayed for. 18

Investigation Service of the

Bureau of Customs; and
2. Reinstating petitioner
Pedro C. Mendoza, Jr. to
the position of Director III,
Customs Intelligence and
Investigation Service of the
Bureau of Customs with full
back wages and other
monetary
benefits
appurtenant thereto from
the time they were withheld
until reinstated. 19
The trial court found that respondent Allas usurped the
position of "Director III, Chief of the Customs Intelligence and
Investigation Service." Consequently, the court ordered that
respondent Allas be ousted from the contested position and
that petitioner be reinstated in his stead. Although petitioner
did not specifically pray for his back salaries, the court
ordered that he be paid his "full back wages and other
monetary benefits" appurtenant to the contested position
"from the time they were withheld until reinstated."
The decision of the trial court had long become final and
executory, and petitioner prays for its execution. He alleges
that he should have been reinstated despite respondent
Olores' appointment because the subject position was never
vacant to begin with. Petitioner's removal was illegal and he
was deemed never to have vacated his office when
respondent Allas was appointed to the same. Respondent
Allas' appointment was null and void and this nullity allegedly
extends to respondent Olores, his successor-in-interest. 20
Ordinarily, a judgment against a public officer in regard to a
public right binds his successor in office. This rule, however,
21
is not applicable in quo warranto cases. A judgment in quo
warranto does not bind the respondent's successor in office,
even though such successor may trace his title to the same
source. This follows from the nature of the writ of quo
warranto itself. It is never directed to an officer as such, but
always against the person to determine whether he is
constitutionally and legally authorized to perform any act in,
or exercise any function of the office to which he lays claim.
22
In the case at bar, the petition for quo warranto was filed
by petitioner solely against respondent Allas. What was
threshed out before the trial court was the qualification and
right of petitioner to the contested position as against
respondent Ray Allas, not against Godofredo Olores. The
Court of Appeals did not err in denying execution of the trial
court's decision.

WHEREFORE, viewed in the light of the

foregoing, judgment is hereby rendered
granting this petition for quo warranto by:

Petitioner has apprised this Court that he reached the

compulsory retirement age of sixty-five (65) years on
November 13, 1997. Reinstatement not being possible,
petitioner now prays for the payment of his back salaries and
other benefits from the time he was illegally dismissed until
finality of the trial court's decision. 23

1. Ousting and excluding

respondent Ray Allas from
the position of Director III,
Customs Intelligence and

Respondent Allas cannot be held personally liable for

petitioner's back salaries and benefits. He was merely
appointed to the subject position by the President of the
Philippines in the exercise of his constitutional power as

In granting the petition, the trial court ordered that:

Chief Executive. Neither can the Bureau of Customs be

compelled to pay the said back salaries and benefits of
petitioner. The Bureau of Customs was not a party to the
petition for quo warranto. 24
IN VIEW WHEREOF, the petition is denied and the decision
of the Court of Appeals in CA-G.R. SP No. 41801 is
affirmed.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

G.R. No. 156959

June 27, 2006

J/SR. SUPT. JOSUE G. ENGAO, Petitioner,

vs.
HONORABLE COURT OF APPEALS, DILG Secretary
JOSE D. LINA, JR., and CHIEF SUPT. ARTURO W. ALIT,
Respondents.
GARCIA, J.:
Assailed and sought to be set aside in this petition for review
under Rule 45 of the Rules of Court with prayer for a
temporary restraining order (TRO) and writ of preliminary
mandatory injunction, are the following issuances of the
Court of Appeals (CA) in CA-G.R. SP No. 72590, to wit:
1. Decision1 dated November 22, 2002, affirming an
earlier decision of the Regional Trial Court (RTC) of
Quezon City declaring the appointment of petitioner
Sr. Supt. Josue G. Engao to the position of Chief,
Bureau of Jail Management and Penology (BJMP),
as null and void for petitioners failure to meet the
minimum qualification standards set by the Civil
Service Commission (CSC); and
2. Resolution2 dated January 21, 2003, denying
petitioner's motion for reconsideration.
Stripped to the bare essentials, the material facts may be
stated as follows:
Private respondent Arturo W. Alit occupied, since July 1999,
the position of Jail/Chief Superintendent, Deputy Chief,
Bureau of Jail Management and Penology (BJMP),
Department of the Interior and Local Government (DILG). On
March 29, 2001, he was designated Officer-in-Charge (OIC)
of the Bureau in view of the resignation of then BJMP
Director, P/Maj. Gen. Aquilino G. Jacob, Jr.
Petitioner Josue G. Engao, on the other hand, held during
the period material the position of Jail Senior Superintendent
of the BJMP.
Pursuant to Memorandum Circular No. 4 of the Office of the
President, the Chief Directorate for Personnel of the BJMP
submitted to the DILG Selection Board for Senior Executive
Positions (SB-SEP) a seniority lineal list from which were
culled the names of eligible candidates for the position of
Director, BJMP.
Of the eleven (11) candidates interviewed, the Board ranked
private respondent Alit first, being the only one who fully met
the CSC Qualification Standards for the position in question,
more particularly, the one-year experience requirement as
Chief Superintendent. Consequently, then DILG Secretary
Jose D. Lina recommended the appointment of private
respondent Alit to the interested position.
However, despite Secretary Lina's recommendation, the
President, on September 6, 2001, appointed petitioner
3
Engao instead. After being sworn into office, Engao
appeared to have assumed the post of BJMP Chief on
September 27, 2001.4

On September 28, 2001, in the Regional Trial Court (RTC) of

Quezon City, private respondent Alit instituted quo warranto
proceedings against petitioner Engao claiming that the
latters appointment was highly irregular and illegal due to
his lack of the minimum qualifications required for the
position.
After due hearing, the trial court denied private respondent
Alit's plea for a TRO and set the case for hearing on his
application for prohibition and injunction.
In a Memorandum5 of October 2, 2001, the Executive
Secretary informed Secretary Lina that petitioner Engao's
appointment as head of the BJMP was being held in
abeyance pending resolution of the legal issues raised by
the DILG involving his qualifications.
Subsequently, the trial court, in an Order6 dated October 8,
2001, directed the Office of the President to take a definite
stand as to whether or not it is appointing petitioner Engao
as permanent BJMP Chief or retaining private respondent
Alit as OIC thereof. In the same order, the trial court
additionally directed as follows:
In the interest of public service and in the exercise of judicial
activism, a cease and desist order is hereby issued
restraining both parties, Arturo W. Alit and Josue G. Engao
from performing and discharging the duties of the Office of
Director BJMP, and in order not to prejudice the operation
and control of the said office, the Court hereby designate[s]
Jose Lina in his capacity as Secretary of DILG to perform the
duties of the Director, BJMP for a period of twenty (20) days.
In the meantime, set the Application for Preliminary
Injunction and Prohibition and Quo Warranto on October 24,
2001 at 8:30 A.M.7
In compliance with the aforequoted directive, Secretary Lina
assumed the duties and functions of Director, BJMP.
Eventually, the trial court rendered on October 29, 2001
judgment in favor of private respondent Alit, disposing as
follows:
Viewed from the foregoing considerations it appears that
[petitioner] Engao does not possess the minimum
qualifications required by law for the position of Director,
Bureau of Jail Management and Penology (BJMP) and as
such his appointment thereto is hereby declared null and
void. There being no valid appointment to the contested
position [respondent] Alit's prior designation as Officer-inCharge, Bureau of Jail Management and Penology (BJMP)
remains unless revoked by the President or a permanent
and valid appointment is made.
SO ORDERED.8 (Word in bracket added.)
Following the trial courts denial of his motion for
reconsideration, petitioner Engao elevated the case to the
CA whereat his appellate recourse was docketed as CAG.R. SP No. 72590.

As stated at the outset hereof, the CA, in its decision9 of

November 22, 2002, affirmed that of the trial court. With his
motion for reconsideration having been denied by the
appellate court in its equally challenged Resolution of
January 21, 2003, petitioner is now with us via this petition
for review with prayer for a TRO and writ of preliminary
injunction.
In its Resolution of March 17, 2003, the Court issued a TRO
enjoining public respondent DILG Secretary Jose D. Lina,
Jr., his agents, representatives, or anyone acting in his
behalf, from enforcing DILG Department Circular No. 200125 and performing the duties and functions as concurrent
Director of the BJMP.
Meanwhile, May 13, 2003 marked petitioner Engao's last
day of government service, he having reached compulsory
retirement age as of that date. Subsequently, President
Gloria Macapagal-Arroyo appointed private respondent Alit
BJMP Director.
Petitioner Engao, in his Memorandum, raises eight issues,
foremost of which are the following:

supervening events, namely, the compulsory retirement of

petitioner Engao from the service, and the appointment of
private respondent Alit as Director of the BJMP. Since then,
Alit has also taken his oath of office and has assumed and
performed the duties of the position.
Time and again, courts have refrained from even expressing
an opinion in a case where the issues have become moot
and academic, there being no more justiciable controversy to
speak of, so that a determination thereof would be of no
practical use or value.10
The suit commenced at the RTC was one for quo warranto,
which, by its nature, is an action against the usurpation of a
11
public office or position. The issue thereat thus turns on
who, between petitioner Engao and private respondent Alit,
is entitled to the position of BJMP Director. Petitioner
Engao having retired in the meantime, and private
respondent Alit having been subsequently appointed by
President Gloria Macapagal-Arroyo to the contested
position, all questions on the validity of the previous
appointment of Engao have become moot.

1.) Whether the prerogative of the President xxx to

appoint persons of his/her trust and confidence to
certain positions in government duly classified as
presidential appointees can be declared null and
void by the court;

In his Memorandum, petitioner raised two additional issues,

namely, his entitlement to salary differential, representation
and transportation allowances (RATA), and other benefits
which he allegedly lost due to the loss of the contested
position, as well as damages owing to the alleged deliberate,
arbitrary and wrongful acts of both the public and private
respondents.

2.) Whether a nominee to a presidential appointive

position can validly maintain an action for quo
warranto against the person appointed thereto by
the President;

Petitioners money claim allegedly arising from his failure to

assume the position of Director, BJMP and damages is
untenable.

3.) Whether a mere nominee can acquire a vested

right to an appointment to the contested post upon a
court finding that the person appointed lacks the
minimum qualifications;
4.) Whether the compulsory retirement of petitioner
Engao has rendered this petition moot and
academic;
5.) Whether petitioner Engao is entitled to salary
differential, emoluments, rata, allowances, rank of
director and all benefits attached to the position of
Chief, BJMP, being unlawfully and arbitrarily
deprived by public respondent DILG Secretary Lina;
and
6.) Whether petitioner Engao is entitled to moral,
nominal, exemplary and corrective damages as
provided particularly in Articles 2218, 2219, 2220,
2221, 2222, 2223, and 2229 of the Civil Code due to
the alleged deliberate, willful, arbitrary, baseless,
unfounded and wrongful acts of private respondent
Alit and public respondent DILG Secretary Lina.
The petition must fail.
Indeed, on issue No. 4 alone, the present petition must be
dismissed for having become moot and academic due to

A public office is not a property within the context of the due

process guarantee of the Constitution. There is no such
thing as a vested interest in a public office, let alone an
absolute right to hold it. Except constitutional offices which
provide for special immunity as regards salary and tenure,
no one can be said to have any vested right in a public office
or its salary.12 It is only when salary has already been
earned or accrued that said salary becomes private property
and entitled to the protection of due process.
The right to salary and other emoluments arising from public
employment is based on ones valid appointment or election
to the office itself and accrues from the date of actual
commencement of the discharge of official duties. As may be
recalled, petitioner Engao, albeit lacking in qualifications,
was nonetheless appointed as Director of the BJMP and
appeared to have entered upon the performance of the
duties of the position from September 27, 2001 to October 2,
2001 when the appointing authority recalled his appointment
owing to some legal issues respecting his qualification.
Subsequently, however, the appointment was peremptorily
nullified. In all, therefore, petitioner Engano served as head
of the BJMP for six (6) days only, but as a de facto officer at
best. And while a de facto officer is entitled to some form of
compensation, respondents Secretary Lina and Alit cannot
be held personally liable for petitioners claim for salary,
RATA and other benefits.13 The BJMP cannot also be
compelled to pay since it was not a party in the petition

below for quo warranto, nor in the appellate proceedings

before the CA.14
Neither is petitioner Engao entitled to any damages. As it
were, the records are bereft of any showing that either
respondent Alit or Secretary Lina acted in a willful, arbitrary,
baseless, or wrongful manner, as Engao alleges. It is
obvious that both, in good faith, believed that Engao was
unqualified for the contested position, as was subsequently
found to be the case by the trial court and then by the CA.
Secretary Lina's assumption of the post in a temporary
capacity during the pendency of the quo warranto suit was
valid as it was, in fact, pursuant to the trials court order.
Private respondent Alit, needless
to stress, was also well within his rights in challenging
petitioner's eligibility to the post.
Further, the two courts below were correct in asserting their
respective jurisdictions over void appointments. While an
appointment is an essentially discretionary executive power,
it is subject to the limitation that the appointee should
possess none of the disqualifications but all the qualifications
required by law.15 Where the law prescribes certain
qualifications for a given office or position, courts may
determine whether the appointee has the requisite
qualifications, absent which, his right or title thereto may be
declared void.16
WHEREFORE, this petition is DENIED.
Cost against petitioner.
SO ORDERED.

G.R. No. 140335

December 13, 2000

THELMA P. GAMINDE, petitioner,

vs.
COMMISSION ON AUDIT and/or Hon. CELSO D.
GANGAN, Hon. RAUL C. FLORES and EMMANUEL M.
DALMAN, respondents.
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to
annul and set aside two "decisions" of the Commission on
Audit ruling that petitioners term of office as Commissioner,
Civil Service Commission, to which she was appointed on
June 11, 1993, expired on February 02, 1999, as set forth in
her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines appointed
petitioner Thelma P. Gaminde, ad interim, Commissioner,
Civil Service Commission. She assumed office on June 22,
1993, after taking an oath of office. On September 07, 1993,
the Commission on Appointment, Congress of the
Philippines confirmed the appointment. We quote verbatim
her appointment paper:
"11 June 1993
"Madam:
"Pursuant to the provisions of existing laws, you are hereby
appointed, ad interim, COMMISSIONER, CIVIL SERVICE
COMMISSION, for a term expiring February 2, 1999.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office
and the Civil Service Commission with copies of your oath of
office."1
However, on February 24, 1998, petitioner sought
clarification from the Office of the President as to the expiry
date of her term of office. In reply to her request, the Chief
2
Presidential Legal Counsel, in a letter dated April 07, 1998
opined that petitioners term of office would expire on
February 02, 2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner remained in
office after February 02, 1999. On February 04, 1999,
Chairman Corazon Alma G. de Leon, wrote the Commission
on Audit requesting opinion on whether or not Commissioner
Thelma P. Gaminde and her co-terminous staff may be paid
their salaries notwithstanding the expiration of their
appointments on February 02, 1999.
On February 18, 1999, the General Counsel, Commission on
Audit, issued an opinion that "the term of Commissioner
Gaminde has expired on February 02, 1999 as stated in her
appointment conformably with the constitutional intent."3

Consequently, on March 24, 1999, CSC Resident Auditor

Flovitas U. Felipe issued notice of disallowance No. 99-002101 (99), disallowing in audit the salaries and emoluments
pertaining to petitioner and her co-terminous staff, effective
4
February 02, 1999.
On April 5, 1999, petitioner appealed the disallowance to the
Commission on Audit en banc. On June 15, 1999, the
Commission on Audit issued Decision No. 99-090 dismissing
petitioners appeal. The Commission on Audit affirmed the
propriety of the disallowance, holding that the issue of
petitioners term of office may be properly addressed by
mere reference to her appointment paper which set the
expiration date on February 02, 1999, and that the
Commission is bereft of power to recognize an extension of
her term, not even with the implied acquiescence of the
5
Office of the President.
In time, petitioner moved for reconsideration; however, on
August 17, 1999, the Commission on Audit denied the
motion in Decision No. 99-129.6
Hence, this petition.7
The Issue
The basic issue raised is whether the term of office of Atty.
Thelma P. Gaminde, as Commissioner, Civil Service
Commission, to which she was appointed on June 11, 1993,
expired on February 02, 1999, as stated in the appointment
paper, or on February 02, 2000, as claimed by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil
Service Commission is prescribed in the 1987 Constitution,
as follows:
"Section 1 (2). The Chairman and the Commissioners shall
be appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a Commissioner
for five years, and another Commissioner for three years,
without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary
8
or acting capacity."
The 1973 Constitution introduced the first system of a
regular rotation or cycle in the membership of the Civil
Service Commission. The provision on the 1973 Constitution
reads:
"x x x The Chairman and the Commissioners shall be
appointed by the Prime Minister for a term of seven years
without reappointment. Of the Commissioners first
appointed, one shall hold office for seven years, another for
five years, and the third for three years. Appointment to any
vacancy shall be only for the unexpired portion of the term of
9
the predecessor."

Actually, this was a copy of the Constitutional prescription in

the amended 1935 Constitution of a rotational system for the
appointment of the Chairman and members of the
Commission on Elections. The Constitutional amendment
creating an independent Commission on Elections provides
as follows:

appointees terms of seven, five and three years, without reappointment. In no case shall any Member be appointed or
designated in a temporary or acting capacity. There is no
need to expressly state the beginning of the term of office as
this is understood to coincide with the effectivity of the
Constitution upon its ratification (on February 02, 1987).

"Section 1. There shall be an independent Commission on

Elections composed of a Chairman and two other Members
to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold
office for nine years, another for six years, and the third for
three years. The Chairman and the other Members of the
Commission on Elections may be removed from office only
by impeachment in the manner provided in this
Constitution."10

On the other hand, Article XVIII, Transitory Provisions, 1987

Constitution provides:

In Republic vs. Imperial,11 we said that "the operation of the

rotational plan requires two conditions, both indispensable to
its workability: (1) that the terms of the first three (3)
Commissioners should start on a common date, and, (2) that
any vacancy due to death, resignation or disability before the
expiration of the term should only be filled only for the
unexpired balance of the term."12
Consequently, the terms of the first Chairmen and
Commissioners of the Constitutional Commissions under the
1987 Constitution must start on a common date, irrespective
of the variations in the dates of appointments and
qualifications of the appointees, in order that the expiration
of the first terms of seven, five and three years should lead
to the regular recurrence of the two-year interval between
the expiration of the terms.13
Applying the foregoing conditions to the case at bar, we rule
that the appropriate starting point of the terms of office of the
first appointees to the Constitutional Commissions under the
1987 Constitution must be on February 02, 1987, the date of
the adoption of the 1987 Constitution. In case of a belated
appointment or qualification, the interval between the start of
the term and the actual qualification of the appointee must
be counted against the latter.14
In the law of public officers, there is a settled distinction
between "term" and "tenure." "[T]he term of an office must
be distinguished from the tenure of the incumbent. The term
means the time during which the officer may claim to hold
office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually
holds the office. The term of office is not affected by the
hold-over. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent."15
In concluding that February 02, 1987 is the proper starting
point of the terms of office of the first appointees to the
Constitutional Commissions of a staggered 7-5-3 year terms,
we considered the plain language of Article IX (B), Section 1
(2), Article IX (C), Section 1 (2) and Article IX (D), Section 1
(2) of the 1987 Constitution that uniformly prescribed a
seven-year term of office for Members of the Constitutional
Commissions, without re-appointment, and for the first

"SEC. 15. The incumbent Members of the Civil Service

Commission, the Commission on Elections, and the
Commission on Audit shall continue in office for one year
after the ratification of this Constitution, unless they are
sooner removed for cause or become incapacitated to
discharge the duties of their office or appointed to a new
term thereunder. In no case shall any Member serve longer
than seven years including service before the ratification of
16
this Constitution."
What the above quoted Transitory Provisions contemplate is
"tenure" not "term" of the incumbent Chairmen and Members
of the Civil Service Commission, the Commission on
Elections and the Commission on Audit, who "shall continue
in office for one year after the ratification of this Constitution,
unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or
appointed to a new term thereunder." The term "unless"
imports an exception to the general rule.17 Clearly, the
transitory provisions mean that the incumbent members of
the Constitutional Commissions shall continue in office for
one year after the ratification of this Constitution under their
existing appointments at the discretion of the appointing
power, who may cut short their tenure by: (1) their removal
from office for cause; (2) their becoming incapacitated to
discharge the duties of their office, or (3) their appointment
to a new term thereunder, all of which events may occur
before the end of the one year period after the effectivity of
the Constitution.
However, the transitory provisions do not affect the term of
office fixed in Article IX, providing for a seven-five-three year
rotational interval for the first appointees under this
Constitution.
At the time of the adoption of the 1987 Constitution, the
incumbent Chairman and members of the Civil Service
Commission were the following: (1) Chairperson Celerina G.
Gotladera. She was initially appointed as OIC Chairman on
March 19, 1986, and appointed chairman on December 24,
1986, which she assumed on March 13, 1987. (2) Atty. Cirilo
G. Montejo. On June 25, 1986, President Corazon C. Aquino
appointed him Commissioner, without any term. He
assumed office on July 9, 1986, and served until March 31,
1987, when he filed a certificate of candidacy for the position
of Congressman, 2nd District, Leyte, thereby vacating his
position as Commissioner. His tenure was automatically cutoff by the filing of his certificate of candidacy. (3) Atty. Mario
D. Yango. On January 22, 1985, President Ferdinand E.
Marcos appointed him Commissioner for a term expiring
January 25, 1990. He served until February 2, 1988, when
his term ended in virtue of the transitory provisions referred
to. On May 30, 1988, President Aquino re-appointed him to a
new three-year term and served until May 31, 1991,

exceeding his lawful term, but not exceeding the maximum

of seven years, including service before the ratification of the
1987 Constitution. Under this factual milieu, it was only
Commissioner Yango who was extended a new term under
the 1987 Constitution. The period consumed between the
start of the term on February 02, 1987, and his actual
assumption on May 30, 1988, due to his belated
appointment, must be counted against him.
Given the foregoing common starting point, we compute the
terms of the first appointees and their successors to the Civil
Service Commission under the 1987 Constitution by their
respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987
to February 01, 1994. On January 30, 1988, the President
nominated Ms. Patricia A. Sto. Tomas Chairman, Civil
Service Commission. On March 02, 1988, the Commission
on Appointments confirmed the nomination. She assumed
office on March 04, 1988. Her term ended on February 02,
1994. She served as de facto Chairman until March 04,
1995. On March 05, 1995, the President appointed then
Social Welfare Secretary Corazon Alma G. de Leon,
Chairman, Civil Service Commission, to a regular sevenyear term. This term must be deemed to start on February
02, 1994, immediately succeeding her predecessor, whose
term started on the common date of the terms of office of the
first appointees under the 1987 Constitution. She assumed
office on March 22, 1995, for a term expiring February 02,
2001.
This is shown in her appointment paper, quoted verbatim as
follows:
"March 5, 1995
"Madam:
"Pursuant to the provisions of Article VII, Section 16,
paragraph 2, of the Constitution, you are hereby appointed,
ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for
a term expiring February 2, 2001.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office
and the Civil Service Commission with copies of your oath of
office.
"(Sgd.) FIDEL V. RAMOS"
Second line : Commissioner Five-year term. February 02,
1987 to February 02, 1992. On January 30, 1988, the
President
nominated Atty. Samilo N.
Barlongay
Commissioner, Civil Service Commission. On February 17,
1988, the Commission on Appointments, Congress of the
Philippines, confirmed the nomination. He assumed office on
March 04, 1988. His term ended on February 02, 1992. He
served as de facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty. Thelma P.
Gaminde Commissioner, Civil Service Commission, for a
18
term expiring February 02, 1999. This terminal date is
specified in her appointment paper. On September 07, 1993,

the Commission on Appointments confirmed the

appointment. She accepted the appointment and assumed
office on June 22, 1993. She is bound by the term of the
appointment she accepted, expiring February 02, 1999. In
this connection, the letter dated April 07, 1998, of Deputy
Executive Secretary Renato C. Corona19 clarifying that her
term would expire on February 02, 2000, was in error. What
was submitted to the Commission on Appointments was a
nomination for a term expiring on February 02, 1999. Thus,
20
the term of her successor must be deemed to start on
February 02, 1999, and expire on February 02, 2006.
Third line : Commissioner Three-year term. February 02,
1987 to February 02, 1990. Atty. Mario D. Yango was
incumbent commissioner at the time of the adoption of the
1987 Constitution. His extended tenure ended on February
02, 1988. In May, 1988, President Corazon C. Aquino
appointed him Commissioner, Civil Service Commission to a
new three-year term thereunder. He assumed office on May
30, 1988. His term ended on February 02, 1990, but served
as de facto Commissioner until May 31, 1991. On November
26, 1991, the President nominated Atty. Ramon P. Ereeta
as Commissioner, Civil Service Commission. On December
04, 1991, the Commission on Appointments confirmed the
nomination. He assumed office on December 12, 1991, for a
term expiring February 02, 1997.21
Commendably, he voluntarily retired on February 02, 1997.
On February 03, 1997, President Fidel V. Ramos appointed
Atty. Jose F. Erestain, Jr. Commissioner, Civil Service
Commission, for a term expiring February 02, 2004. He
assumed office on February 11, 1997.
Thus, we see the regular interval of vacancy every two (2)
years, namely, February 02, 1994, for the first Chairman,22
February 02, 1992, for the first five-year term
Commissioner,23 and February 02, 1990, for the first threeyear term Commissioner.24 Their successors must also
maintain the two year interval, namely: February 02, 2001,
for Chairman;25 February 02, 1999, for Commissioner
Thelma P. Gaminde, and February 02, 1997, for
Commissioner Ramon P. Ereeta, Jr.
The third batch of appointees would then be having terms of
office as follows:
First line : Chairman, February 02, 2001 to February 02,
2008; Second line: Commissioner, February 02, 1999 to
February 02, 2006;26 and, Third line: Commissioner,
February 02, 1997 to February 02, 2004,27 thereby
consistently maintaining the two-year interval.
The line of succession, terms of office and tenure of the
Chairman and members of the Civil Service Commission
may be outlined as follows:28
Chairman Term Tenure
(7-year original)
Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988
to

Feb. 02, 1994 March 08, 1995

De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995
to

and emoluments of Commissioner Thelma P. Gaminde and

her coterminous staff during her tenure as de facto officer
from February 02, 1999, until February 02, 2000.
This decision shall be effective immediately.

(incumbent) Feb. 02, 2001 Feb. 02, 2001

No costs.
_______ - 3rd appointee Feb. 02, 2001 to
SO ORDERED.
Feb. 02, 2008
2nd Member Term Tenure
(5-year original)
Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988
to
Feb. 02, 1992 March 04, 1993
Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Feb. 02, 1999 Feb. 02, 2000
Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
(incumbent) Feb. 02, 2006 Feb. 02, 2006
3rd Member Term Tenure
(3-year original)
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
Feb. 02, 1990 May 31, 1991
Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
Feb. 02, 1997 Feb. 02, 1997
Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997
to
(incumbent) Feb. 02, 2004 Feb. 02, 2004
The Fallo
WHEREFORE, we adjudge that the term of office of Ms.
Thelma P. Gaminde as Commissioner, Civil Service
Commission, under an appointment extended to her by
President Fidel V. Ramos on June 11, 1993, expired on
February 02, 1999. However, she served as de facto officer
in good faith until February 02, 2000, and thus entitled to
receive her salary and other emoluments for actual service
rendered. Consequently, the Commission on Audit erred in
disallowing in audit such salary and other emoluments,
including that of her co-terminous staff.
ACCORDINGLY, we REVERSE the decisions of the
Commission on Audit insofar as they disallow the salaries

G. R. No. 156982

September 8, 2004
P255,750.00

NATIONAL AMNESTY COMMISSION, petitioner,

vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO, Director
IV, NCR, Commission on Audit, and ERNESTO C.
EULALIA, Resident Auditor, National Amnesty
Commission. respondents.
CORONA, J.:
This petition for review1 seeks to annul the two decisions of
respondent Commission on Audit (COA)2 dated July 26,
20013 and January 30, 2003,4 affirming the September 21,
5
1998 ruling of the National Government Audit Office
(NGAO). The latter in turn upheld Auditor Ernesto C.
Eulalia's order disallowing the payment of honoraria to the
representatives of petitioner's ex officio members, per COA
Memorandum No. 97-038.

Meanwhile, on April 28, 1999, the NAC passed

Administrative Order No. 2 (the new Implementing Rules and
Regulations of Proclamation No. 347), which was approved
by then President Joseph Estrada on October 19, 1999.
Section 1, Rule II thereof provides:
Section 1, Composition - The NAC shall be
composed of seven (7) members:
a) A Chairperson who shall be appointed by
the President;
b) Three (3) Commissioners who shall be
appointed by the President;
c) Three (3) Ex-officio Members

Petitioner National Amnesty Commission (NAC) is a

government agency created on March 25, 1994 by then
President Fidel V. Ramos through Proclamation No. 347.
The NAC is tasked to receive, process and review amnesty
applications. It is composed of seven members: a
Chairperson, three regular members appointed by the
President, and the Secretaries of Justice, National Defense
and Interior and Local Government as ex officio members.6
It appears that after personally attending the initial NAC
meetings, the three ex officio members turned over said
responsibility to their representatives who were paid
honoraria beginning December 12, 1994. However, on
October 15, 1997, NAC resident auditor Eulalia disallowed
on audit the payment of honoraria to these representatives
amounting to P255,750 for the period December 12, 1994 to
June 27, 1997, pursuant to COA Memorandum No. 97-038.
On September 1, 1998, the NGAO upheld the auditor's order
and notices of disallowance were subsequently issued to the
following:7
REPRESENTATIVES

AMOUNT

1. Cesar
Averilla
Department of National Defense
P 2,500.00
2. Ramon
Martinez
Department of National Defense
73,750.00
3. Cielito
Department of Justice

Mindaro,

4. Purita
Department of Justice

Deynata

18,750.00
62,000.00

5. Alberto
Bernardo
Department of the Interior And
Local Government
71,250.00
6. Stephen
Villaflor
Department of the Interior and
Local Government
26,250.00
7. Artemio
Department of Justice

1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local
Government
The ex officio members may designate their
representatives to the Commission.
Said
Representatives shall be entitled to per diems,
allowances, bonuses and other benefits as may
be authorized by law. (Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing
before the COA the rulings of the resident auditor and the
NGAO disallowing payment of honoraria to the ex officio
members' representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present
petition, contending that the COA committed grave abuse of
discretion in: (1) implementing COA Memorandum No. 97038 without the required notice and publication under Article
2 of the Civil Code; (2) invoking paragraph 2, Section 7,
Article IX-B of the 1987 Constitution to sustain the
disallowance of honoraria under said Memorandum; (3)
applying the Memorandum to the NAC ex officio members'
representatives who were all appointive officials with ranks
below that of an Assistant Secretary; (4) interpreting laws
and rules outside of its mandate and declaring Section 1,
Rule II of Administrative Order No. 2 null and void, and (5)
disallowing the payment of honoraria on the ground of lack
of authority of representatives to attend the NAC meetings in
8
behalf of the ex officio members.
We hold that the position of petitioner NAC is against the law
and jurisprudence. The COA is correct that there is no legal
basis to grant per diem, honoraria or any allowance
whatsoever to the NAC ex officio members' official
representatives.

Aspiras
1,250.00

The Constitution mandates the Commission on Audit to

ensure that the funds and properties of the government are

validly, efficiently and conscientiously used. Thus, Article IXD of the Constitution ordains the COA to exercise exclusive
and broad auditing powers over all government entities or
trustees, without any exception:
Section 2. (1) The Commission on Audit shall have
the power, authority and duty to examine, audit,
and settle all accounts pertaining to the revenue
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
and
controlled
corporations with original charters, and on a postaudit basis: (a) constitutional bodies, commissions
and offices that have been granted fiscal autonomy
under this Constitution; (b) autonomous state
colleges and universities; (c) other governmentowned or controlled corporations and their
subsidiaries; and (d) such non-governmental entities
receiving subsidy or equity, directly or indirectly,
from or through the government, which are required
by law of the granting institution to submit to such
audit as a condition of subsidy or equity. However,
where the internal control system of the audited
agencies is inadequate, the Commission may adopt
such measures, including temporary or special preaudit, as are necessary and appropriate to correct
the deficiencies. It shall keep the general accounts
of the Government and, for such period as may be
provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority,
subject to the limitations in this Article, to define the
scope of its audit and examination, establish the
techniques and methods required therefor, and
promulgate accounting and auditing rules and
regulations, including those for the prevention
and disallowance of irregular, unnecessary,
inexpensive, extravagant, or unconscionable
expenditures, or uses of government funds and
properties.
Section 3. No law shall be passed exempting any
entity of the Government or its subsidiary in any
guise whatever, or any investment of public funds,
from the jurisdiction of the Commission on
Audit. (Emphasis supplied).
It is in accordance with this constitutional mandate that the
COA issued Memorandum No. 97-038 on September 19,
1997:
COMMISSION ON AUDIT MEMORANDUM NO. 97038
SUBJECT: Implementation of Senate Committee
Report No. 509, Committee on Accountability of
Public Officers and Investigations and Committee on
Civil Service and Government Reorganization.
The Commission received a copy of Senate
Committee Report No. 509 urging the Commission

on Audit to immediately cause the disallowance

of any payment of any form of additional
compensation or remuneration to cabinet
secretaries, their deputies and assistants, or
their representatives, in violation of the rule on
multiple positions, and to effect the refund of
any and all such additional compensation given
to and received by the officials concerned, or
their representatives, from the time of the finality
of the Supreme Court ruling in Civil Liberties
Union v. Executive Secretary to the present. In
the Civil Liberties Union case, the Supreme Court
ruled that Cabinet Secretaries, their deputies and
assistants may not hold any other office or
employment. It declared Executive Order 284
unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold
other offices in addition to their primary office
and to receive compensation therefor. The said
decision became final and executory on August
19, 1991.
In view thereof, all unit heads/auditors/team leaders
of the national government agencies and
government owned or controlled corporations which
have effected payment of subject allowances, are
directed to implement the recommendation
contained in the subject Senate Committee Report
by undertaking the following audit action:
1. On accounts that have not been
audited and settled under certificate of
settlements and balances on record from
August 19, 1991 to present - to
immediately issue the Notices of
disallowance
and
corresponding
certificate of settlements and balances.
2. On accounts that have been audited and
settled under certificate of settlements and
balances on record - to review and re-open
said accounts, issue the corresponding
notices of disallowance, and certify a new
balance thereon. It is understood that the
re-opening of accounts shall be limited to
those that were settled within the
prescriptive period of three (3) years
prescribed in Section 52 of P.D. 1445.
3. On disallowances previously made on
these accounts - to submit a report on the
status of the disallowances indicating
whether those have been refunded/settled
or have become final and executory and the
latest action taken by the Auditor thereon.
All auditors concerned shall ensure that all
documents evidencing the disallowed payments are
kept intact on file in their respective offices.
Any problem/issue arising from the implementation
of this Memorandum shall be brought promptly to
the attention of the Committee created under COA

Officer Order No. 97-698 thru

concerned, for immediate resolution.

the

Director

An initial report on the implementation of this

Memorandum shall be submitted to the Directors
concerned not later than October 31, 1997.
Thereafter, a quarterly progress report on the status
of disallowances made shall be submitted, until all
the disallowances shall have been enforced.
The Committee created under COA Office Order No.
97-698, dated September 10, 1997, shall supervise
the implementation of this Memorandum which shall
take effect immediately and shall submit a
consolidated report thereon in response to the
recommendation of the Senate Committee on
Accountability of Public Officers and Investigation
and Committee on Civil Service and Government
9
Reorganization. (Emphasis supplied)
Contrary to petitioner's claim, COA Memorandum No. 97038 does not need, for validity and effectivity, the publication
required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such
publication.
We clarified this publication requirement in Taada
vs. Tuvera:10
[A]ll statutes, including those of local
application and private laws, shall be
published as a condition for their effectivity,
which shall begin fifteen days after
publication unless a different effectivity date
is fixed by the legislature.
Covered by this rule are presidential decrees and
executive orders promulgated by the President
in the exercise of legislative powers whenever
the same are validly delegated by the legislature
or, at present, directly conferred by the
Constitution.
Administrative
rules
and
regulations must also be published if their
purpose is to enforce or implement existing law
pursuant to a valid delegation.
Interpretative regulations and those merely
internal in nature, that is, regulating only the
personnel of the administrative agency and not
the public, need not be published. Neither is
publication required of the so-called letters of
instructions issued by administrative superiors
concerning the rules or guidelines to be followed
by their subordinates in the performance of their
duties. (Emphasis supplied.)
COA Memorandum No. 97-038 is merely an internal and
interpretative regulation or letter of instruction which does
not need publication to be effective and valid. It is not an

implementing rule or regulation of a statute but a directive

issued by the COA to its auditors to enforce the selfexecuting prohibition imposed by Section 13, Article VII of
the Constitution on the President and his official family, their
deputies and assistants, or their representatives from
holding multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97038, the Court had the occasion to categorically explain this
constitutional prohibition in Civil Liberties Union vs. The
11
Executive Secretary:
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject
to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution, which provides as
follows:
"Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct
of their office."
xxx

xxx

xxx

[D]oes the prohibition in Section 13, Article VII of

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

xxx

xxx

But what is indeed significant is the fact that

although Section 7, Article IX-B already contains
a blanket prohibition against the holding of
multiple offices or employment in the
government subsuming both elective and
appointive public officials, the Constitutional
Commission should see it fit to formulate
another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-

President, members of the Cabinet, their

deputies and assistants from holding any other
office or employment during their tenure, unless
otherwise provided in the Constitution itself.

Communications is the ex-officio Chairman of the

Board of the Philippine Ports Authority, and the Light
Rail Transit Authority.
xxx

xxx

xxx

Thus, while all other appointive officials in the

civil service are allowed to hold other office or
employment in the government during their
tenure when such is allowed by law or by the
primary functions of their positions, members of
the Cabinet, their deputies and assistants may
do so only when expressly authorized by the
Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public
officials and employees, while Section 13, Article
VII is meant to be the exception applicable only
to the President, the Vice-President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase
"unless otherwise provided in this Constitution"
in Section 13, Article VII cannot possibly refer to
the broad exceptions provided under Section 7,
Article IX-B of the 1987 Constitution. . . .
xxx

xxx

xxx

The prohibition against holding dual or multiple

offices or employment under Section 13, Article
VII of the Constitution must not, however, be
construed as applying to posts occupied by the
Executive officials specified therein without
additional compensation in an ex-officio capacity
as provided by law and as required by the
primary functions of said officials' office. The
reason is that these posts do no comprise "any
other office" within the contemplation of the
constitutional prohibition but are properly an
imposition of additional duties and functions on
said officials.
xxx

xxx

xxx

xxx

xxx

xxx

[T]he prohibition under Section 13, Article VII is

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

The ex-officio position being actually and in legal

contemplation part of the principal office, it follows
that the official concerned has no right to receive
additional compensation for his services in the
said position. The reason is that these services are
already paid for and covered by the
compensation attached to his principal office. x x
x
xxx

xxx

xxx

[E]x-officio posts held by the executive official

concerned without additional compensation as
provided by law and as required by the primary
functions of his office do not fall under the
definition of "any other office" within the
contemplation of the constitutional prohibition...
(Emphasis supplied).
Judicial decisions applying or interpreting the laws or the
Constitution, such as the Civil Liberties Union doctrine, form
part of our legal system.12 Supreme Court decisions assume
the same authority as valid statutes.13 The Court's
interpretation of the law is part of that law as of the date of
enactment because its interpretation merely establishes the
contemporary legislative intent that the construed law
purports to carry into effect.14
COA Memorandum No. 97-038 does not, in any manner or
on its own, rule against or affect the right of any individual,
except those provided for under the Constitution. Hence,
publication of said Memorandum is not required for it to be
valid, effective and enforceable.
In Civil Liberties Union, we elucidated on the two
constitutional prohibitions against holding multiple positions
in the government and receiving double compensation: (1)
the blanket prohibition of paragraph 2, Section 7, Article IX-B
on all government employees against holding multiple
government offices, unless otherwise allowed by law or the
primary functions of their positions, and (2) the stricter
prohibition under Section 13, Article VII on the President and
his official family from holding any other office, profession,
business or financial interest, whether government or
private, unless allowed by the Constitution.
The NAC ex officio members' representatives who were all
appointive officials with ranks below Assistant Secretary are
covered by the two constitutional prohibitions.
First, the NAC ex officio members' representatives are not
exempt from the general prohibition because there is no law
or administrative order creating a new office or position and
authorizing additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987
reiterate the constitutional prohibition against multiple

positions in the government and receiving additional or

double compensation:
SEC. 54. Limitation on Appointment. - (1) No
elective official shall be eligible for appointment or
designation in any capacity to any public office or
position during his tenure.
xxx

xxx

xxx

(3) Unless otherwise allowed by law or by the

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

xxx

xxx

SEC. 56. Additional or Double Compensation. -- No

elective or appointive public officer or employee
shall receive additional or double compensation
unless specifically authorized by law nor accept
without the consent of the President, any present,
emolument, office, or title of any kind form any
foreign state.
Pensions and gratuities shall not be considered as
additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the
receipt of such additional emolument.
The representatives in fact assumed their responsibilities not
by virtue of a new appointment but by mere designation from
the ex officio members who were themselves also
designated as such.
There is a considerable difference between an appointment
and designation. An appointment is the selection by the
proper authority of an individual who is to exercise the
powers and functions of a given office; a designation merely
connotes an imposition of additional duties, usually by law,
upon a person already in the public service by virtue of an
earlier appointment.15
Designation does not entail payment of additional benefits or
grant upon the person so designated the right to claim the
salary attached to the position. Without an appointment, a
designation does not entitle the officer to receive the salary
of the position. The legal basis of an employee's right to
claim the salary attached thereto is a duly issued and
16
approved appointment to the position, and not a mere
designation.
Second, the ex officio members' representatives are also
covered by the strict constitutional prohibition imposed on
the President and his official family.
Again, in Civil Liberties Union, we held that cabinet
secretaries, including their deputies and assistants, who hold
positions in ex officio capacities, are proscribed from
receiving additional compensation because their services

are already paid for and covered by the compensation

attached to their principal offices. Thus, in the attendance of
the NAC meetings, the ex officio members were not entitled
to, and were in fact prohibited from, collecting extra
compensation, whether it was called per diem, honorarium,
allowance or some other euphemism. Such additional
compensation is prohibited by the Constitution.
17

18

Furthermore, in de la Cruz vs. COA and Bitonio vs. COA,

we upheld COA's disallowance of the payment of honoraria
and per diems to the officers concerned who sat as ex officio
members or alternates. The agent, alternate or
representative cannot have a better right than his principal,
the ex officio member. The laws, rules, prohibitions or
restrictions that cover the ex officio member apply with equal
force to his representative. In short, since the ex officio
member is prohibited from receiving additional compensation
for a position held in an ex officio capacity, so is his
representative likewise restricted.
The Court also finds that the re-opening of the NAC
accounts within three years after its settlement is within
COA's jurisdiction under Section 52 of Presidential Decree
No. 1445, promulgated on June 11, 1978:

SECTION 52. Opening and revision of settled

accounts. (1) At any time before the expiration of
three years after the settlement of any account by an
auditor, the Commission may motu propio review
and revise the account or settlement and certify a
new balance.
More importantly, the Government is never estopped by the
mistake or error on the part of its agents.19 Erroneous
application and enforcement of the law by public officers do
not preclude subsequent corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order No. 2
s. 1999 null and void, the COA ruled that:
Petitioner further contends that with the new IRR
issued by the NAC authorizing the ex-officio
members to designate representatives to attend
commission meetings and entitling them to receive
per diems, honoraria and other allowances, there is
now no legal impediment since it was approved by
the President. This Commission begs to disagree.
Said provision in the new IRR is null and void for
having been promulgated in excess of its rulemaking authority. Proclamation No. 347, the
presidential issuance creating the NAC, makes no
mention that representatives of ex-officio members
can take the place of said ex-officio members during
its meetings and can receive per diems and
allowances. This being the case, the NAC, in the
exercise of its quasi-legislative powers, cannot add,
expand or enlarge the provisions of the issuance it
seeks to implement without committing an ultra vires
20
act.
We find that, on its face, Section 1, Rule II of Administrative
Order No. 2 is valid, as it merely provides that:

The ex officio members may designate their

representatives
to
the
Commission.
Said
Representatives shall be entitled to per diems,
allowances, bonuses and other benefits as may be
authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the
NAC and the COA interpreted it.
First, the administrative order itself acknowledges that
payment of allowances to the representatives must be
authorized by the law, that is, the Constitution, statutes and
judicial decisions. However, as already discussed, the
payment of such allowances is not allowed, prohibited even.
Second, the administrative order merely allows the ex officio
members to designate their representatives to NAC
meetings but not to decide for them while attending such
meetings. Section 4 of the administrative order categorically
states:
Decisions of the NAC shall be arrived at by a
majority vote in a meeting where there is a quorum
consisting of at least four members.
Thus, although the administrative order does not
preclude the representatives from attending the NAC
meetings, they may do so only as guests or
witnesses to the proceedings. They cannot
substitute for the ex officio members for purposes of
determining quorum, participating in deliberations
and making decisions.
Lastly, we disagree with NAC's position that the
representatives are de facto officers and as such are entitled
to allowances, pursuant to our pronouncement in Civil
Liberties Union:
"where there is no de jure officer, a de facto officer,
who in good faith has had possession of the office
and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and
may in appropriate action recover the salary, fees
and other compensation attached to the office."
A de facto officer "derives his appointment from one
having colorable authority to appoint, if the office is
an appointive office, and whose appointment is valid
on its face. (He is) one who is in possession of an
office and is discharging its duties under color of
authority, by which is meant authority derived from
an appointment, however irregular or informal, so
that the incumbent be not a mere volunteer."21
The representatives cannot be considered de facto officers
because they were not appointed but were merely
designated to act as such. Furthermore, they are not entitled
to something their own principals are prohibited from
receiving. Neither can they claim good faith, given the
express prohibition of the Constitution and the finality of our
decision in Civil Liberties Union prior to their receipt of such
allowances.

WHEREFORE the petition is hereby DISMISSED for lack of

merit.
SO ORDERED.