G.R. No.

111091 August 21, 1995

ENGINEER CLARO J. PRECLARO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information against him read as
follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Project
Manager/ Consultant of the Chemical Mineral Division, Industrial Technology Development Institute,
Department of Science and Technology, a component of the Industrial Development Institute (ITDI for
brevity) which is an agency of the Department of Science and Technology (DOST for brevity), wherein the
Jaime Sta. Maria Construction undertook the construction of the building in Bicutan, Taguig, Metro
Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND
PESOS (P17,695,000.00) jointly funded by the Philippine and Japanese Governments, and while the said
construction has not yet been finally completed, accused either directly requested and/or demanded for
himself or for another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00), claimed as part
of the expected profit of FOUR HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in connection
with the construction of that government building wherein the accused had to intervene under the law in his
capacity as Project Manager/Consultant of said construction said offense having been committed in
relation to the performance of his official duties.
CONTRARY TO LAW. 1
On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment finding
petitioner guilty beyond reasonable doubt. The dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos GUILTY beyond
reasonable doubt of the violation of Section 3, paragraph (b) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, and he is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) YEARS and ONE (1) MONTH, as the minimum, to TEN (10)
YEARS and ONE (1) DAY, as the maximum, perpetual disqualification from public office and to pay the
costs of this action.
SO ORDERED. 2
The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology Development Institute (ITDI), a
component of the Department of Science and Technology (DOST) employed Petitioner under a written contract of
services as Project Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST
Compound in Bicutan, Taguig, Metro Manila. 3

The contract was to remain in effect from October 1, 1989 up to the end of the construction period unless sooner
terminated. 4 Petitioner was to be paid a monthly salary drawn from counter-part funds duly financed by foreignassisted projects and government funds duly released by the Department of Budget and Management. 5
In November 1989, to build the aforementioned CMD Structure, DOST contracted the services of the Jaime Sta.
Maria Construction Company with Engr. Alexander Resoso, as the company's project engineer. 6
How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated in the Comment of the
Solicitor General and amply supported by the records. The material portions are hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria Construction
Company, was in the process of evaluating a Change Order for some electricals in the building construction
when petitioner approached him at the project site (p. 11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change Order will be deductive
(meaning, charged to the contractor by deducting from the contract price), instead of additive (meaning,
charged to the owner). Petitioner intimated that he can forget about the deductive provided he gets
P200,000.00, a chunk of the contractor's profit which he roughly estimated to be around P460,000.00 (pp.
12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria Construction Company,
Resoso thereafter asked petitioner if he wanted a rendezvous for him to receive the money. Petitioner chose
Wendy's Restaurant, corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around 8:00
o'clock in the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June, perceiving financial
constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15, Ibid.) Petitioner
was thereafter asked to bring along the result of the punch list (meaning, the list of defective or correctible
works to be done by the contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of Investigation (NBI) to
report the incident (p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his conformity (p. 16, TSN, 12
Oct. 1990). Accordingly, Sta. Maria, Sr. was requested to produce the amount of P50,000.00 in P500.00
denomination to represent the grease money (p. 37, TSN, 6 Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI. Thereafter, the money was
dusted with flourescent powder and placed inside an attache case (pp. 16-17, Ibid.). Resoso got the attache
case and was instructed not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant
earlier than the designated time where a group of NBI men awaited him and his companion, Sta. Maria, Jr.
(pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog, Quezon City, to fetch
Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's Restaurant. They were led by
the NBI men to a table previously reserved by them which was similarly adjacent to a table occupied by
them (pp. 18-19, Ibid.).

13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation took place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what did he do?
a. We asked him his order and we talked about the punch list.
q. What was his comment about the punch list?
a. He told us that it is harder to produce small items than big ones.
q. How long did you converse with Engr. Claro Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his punch list, did you talk about anything
else?
a. Engineer Sta. Maria, Jr., they were conversing with Dave Preclaro
and he told [him], "O, paano na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then Preclaro told [him], "Paano,
How will the money be arranged and can I bring it?" he said.
And then Jimmy Sta. Maria, Jr. told him it was arranged on two
bundles on two envelopes.
And then Dave Preclaro told, "Puede" and he asked Jimmy Sta. Maria,
Jr. if there is express teller and could he deposit during night time but
Engineer Sta. Maria, Jr. told him, "I do not have any knowledge or I do
not have any express teller you can deposit. I only know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened and interviewed him that way,
was there anything that happened?
a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro.

q. Did Claro Preclaro receive these two envelopes from Engineer Sta.
Maria?
a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand, thereafter placing them
under his left armpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively docked to avoid the taking of pictures. In
such manner, the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused. Hence, one of the
NBI men picked up the envelopes and placed them inside a big brown envelope (p. 27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was tested positive of flourescent
powder. The same flourescent powder, however, cannot be detected in petitioner's T-shirt and pants (p. 5,
TSN, 29 Oct. 1990). 7
xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner which, after due hearing, resulted in
his conviction by the Sandiganbayan. Not satisfied with the decision, petitioner instituted the present petition for
review, ascribing to the Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF
DISMISSING IT FOR LACK OF JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC
OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE
OFFENSE CHARGED HAVE BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR
THAT THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND
REASONABLE DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt
Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a public office. Rather,
petitioner maintains that he is merely a private individual hired by the ITDI on contractual basis for a particular
project and for a specified period 8 as evidenced by the contract of services 9 he entered into with the ITDI.
Petitioner, to further support his "theory," alleged that he was not issued any appointment paper separate from the
abovementioned contract. He was not required to use the bundy clock to record his hours of work and neither did he
take an oath of office. 10
We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof
"includes elective and appointive officials and employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even nominal, from the government. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The
terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which

have been reclassified into Career Service and Non-Career Service 11 by PD 807 providing for the organization of
the Civil Service Commission 12 and by the Administrative Code of 1987. 13
Non-career service in particular is characterized by
(1) entrance on bases other than those of the usual test of merit and fitness utilized for the career
service;and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or which is limited to the duration of a particular project
for which purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President
and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or
confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special
contract to undertake a specific work or job, requiring special or technical skills not available in the
employing agency, to be accomplished within a specific period, which in no case shall exceed one year,
and performs or accomplishes the specific work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis ours.) 14
From the foregoing classification, it is quite evident that petitioner falls under the non-career service category
(formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined
by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath
of office became unessential considerations in view of the above-mentioned provision of law clearly including
petitioner within the definition of a public officer.
Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act
because his intervention "was not required by law but in the performance of a contract of services entered into by
him as a private individual contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of a
public officer and as such, his duties delineated in Annex "B" of the contract of services 16 are subsumed under the
phrase "wherein the public officer in his official capacity has to intervene under the law." 17 Petitioner's allegation, to
borrow a cliche, is nothing but a mere splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's accomplishment reports/billings 18hence,
as correctly ruled by the Sandiganbayan he has the "privilege and authority to make a favorable recommendation
and act favorably in behalf of the government," signing acceptance papers and approving deductives and additives
are some examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore,
present.
Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges
against him should be rejected for being improbable, unbelievable and contrary to human nature.

We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral certainty is
required or "that degree of proof which produces conviction in an unprejudiced mind." 20 We have extensively
reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies of the prosecution witnesses.
We shall examine the testimonies referred to with meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, when he could
have just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his
percentage share of P200,000.00 whether from the contractor's project engineer, Engr. Alexander Resoso or directly
from the contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all that is required by
Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently established by the testimony of Engr. Resoso,
thus:
xxx xxx xxx
Q You said when you were computing your Change Order Mr. Preclaro or Dave Preclaro
whom you identified approached you, what did you talk about?
A He mentioned to me that we are deductive in our Change Order three and four so after
our conversation I told this conversation to my boss that we are deductible in the Change
Order three and four and then my boss told me to ask why it is deductive.
Q Did you ask the accused here, Dave Preclaro why it is considered deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you how come it became deductive when
my computation is additive and he told me that I have done so much for your company
already and then he picked up cement bag paper bag and computed our alleged profit
amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in our case he would use a
minimum percentage and multiply to 60 and . . .
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and he said take of the butal and get two Hundred Thousand Pesos.
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00. (Emphasis ours.)

PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss. (Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical and after that I told my boss what he
told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the message to Mr. Preclaro?
A The next day he told me to ask Dave where and when to pick up the money so the next
day I asked Dave "Where do you intend to get the money, the Boss wanted to know."
Q What was the answer of Dave?
A And he told me, Wendy's Restaurant at 3:00 o'clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6 appointment?
A I told my boss what he told me again that the meeting will take place at Wendy's
Restaurant corner Edsa and Camias Street at around 8:00 o'clock p.m. June 6,
Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?

A My boss told me to ask Dave to postpone the meeting on June 6 to be postponed on

June 8 at the same place and same time because my boss is having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a hurry. Any way we are the
ones to sign the acceptance papers and my boss instructed me that on Friday to ask Dave
to bring along the result of the punch list and if possible also to bring along the
acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to relay the postponement if any?
A Nothing happened. The next day, Thursday the boss instructed me to go with him to
the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the of the NBI?
A Yes sir. 21
xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried to arrange meetings with
him regarding his demand 22 does not weaken the cause against petitioner. It does not at all prove that petitioner did
not ask for money. Conceivably petitioner did not muster enough courage to ask money directly from the contractor
himself. Getting the amount through the project engineer would be safer because if Mr. Sta. Maria, Sr. had refused
to give money, petitioner could always deny having made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too high considering that the
estimated profit of the contractor from the CMD project is only P460,000.00. In petitioner's words, this would "scare
the goose that lays the golden egg." 23 We reject this argument. The aforementioned contractor's profit is petitioner's
own computation as testified to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you how come it became deductive when
my computation is additive and he told me that I have done so much for your company
alreadyand then he picked up cement bag paper bag and computed our alleged profit
amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in our case he would use a
minimum percentage and multiply to 460 and . . . (Emphasis ours.)
JUSTICE ESCAREAL:
Q What is 460?

A P460,000.00 and it ended to P215 thousand or P20,000.00 and he said take of the
butal and get the Two Hundred Thousand Pesos. (Emphasis ours.)
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00.
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss. 24
xxx xxx xxx
The records, however, do not show the true and actual amount that the Sta. Maria Construction will earn as profit.
There is, therefore, no basis for petitioner's contention as the actual profit may be lower or higher than his
estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage proper compensation since he
has allegedly done so much for the Sta. Maria construction company. 25
Petitioner also argues that:
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why would the
petitioner still demand P200,000.00 which would increase the contractor's loss to P480,000.00!
It might have been different if the changes were additive where STA. MARIA CONSTRUCTION would
have earned more, thereby providing motive for the petitioner to ask for a percentage! 26
But this is precisely what petitioner was bargaining for P200,000.00 in exchange for forgetting about the
deductive 27 and thus prevent the Sta. Maria Construction from incurring losses.
Petitioner's contention that it was impossible for him to make any demands because the final decision regarding
accomplishments and billing lies with the DOST technical committee is unacceptable. Petitioner is part of the
abovementioned technical committee as the ITDI representative consultant. This is part of his duties under the
contract of services in connection with which he was employed by the ITDI. Even, assuming arguendo that
petitioner does not make the final decision, as supervisor/consultant, his recommendations will necessarily carry
much weight. Engr. Resoso testified thus:
PROS. CAOILI:
Q As a Project Engineer to whom do you present your billing papers accomplishment
report or purchase order?

A The billing paper was being taken cared of by the, of our office. I personally do my job
as supervision in the construction.
Q Do you have any counterpart to supervise the project from the government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-Structure Committee and also the ITDI
as its own representative.
Q Who composed the Technical Committee of the DOST?
A A certain Engineer Velasco, Engineer Sande Banez and Engineer Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis ours.)
xxx xxx xxx
ATTY. CAOILI:
Q As Project Engineer do you consult to any body regarding your job?
A First if there is any problem in the site I consult my boss.
PROS. CAOILI:
Q How about with the other consultants representing the ITDI and DOST?
A In the construction site we have meeting every Monday to discuss any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the Infra-structure Committee of ITDI,
the architect and the contractor. We had weekly meetings.
Q What matters if any do you consult with Mr. Claro Preclaro?
ATTY. JIMENEZ:
No basis.
JUSTICE ESCAREAL:
They met on problems on Mondays.

ATTY. JIMENEZ:
But there is no mention of Preclaro specifically.
JUSTICE ESCAREAL:
With the representative of DOST and Preclaro
ATTY. JIMENEZ:
Does that also mean that Preclaro is also among the representatives he is going to consult
with?
Well any way. . .
JUSTICE ESCAREAL:
Witness may answer the question.
Read back the question.
COURT STENOGRAPHER:
Reading back the question as ordered by the Court.
WITNESS:
A Every Monday meeting we tackle with accomplishment report the billing
papers. 28 (Emphasis ours.)
xxx xxx xxx
Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself are
conflicting, doubtful or improbable:
(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder and used in
the alleged entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in P500
denomination to the NBI. 29
There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria, Sr.'s
testimony touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's declaration
referred only to the number of bills dusted with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon receiving the same?

A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he could deposit
the money but Mr. Sta. Maria said, "I do not have, I only have credit cards." 30
Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr. He was merely inquiring
from the latter if there was an express teller nearby where he could make the deposit. Mr. Sta. Maria Jr. himself
testified as follows:
A He asked me if there was express teller. I told him I do not know then he asked me
whether it is possible to deposit at the Express Teller at that time. I told him I don't know
because I have no express teller card and he asked me how am I going to arrange, how
was it arranged if I will bring it, can I bring it. Then I told him that it was placed in two
envelopes consisting of 500 Peso bills and then he said "Okay na yan." 31
The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal to the
People's cause. The transaction was witnessed by several people, among whom were Engr. Resoso, Mr. Sta. Maria
Jr. and the NBI agents whose testimonies on the circumstances before, during and after the turn-over are consistent,
logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn-over so as
not to alert and scare off the petitioner. During cross-examination Agent Balanban Jr. stated:
xxx xxx xxx
Q Now, of course, this entrapment operation, you made certain preparation to make sure
that you would be able to gather evidence in support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the purpose?
A That is right sir.
Q And that photographer was precisely brought along to record the entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
ATTY. JIMENEZ:
From the time of the handing over of the envelopes until the entrapment would have been
terminated?
A No sir we plan to take the photograph only during the arrest because if we take
photographs he would be alerted during the handing of the envelopes. (Emphasis ours.)
Q So you did not intend to take photographs of the act of handing of the envelopes to the
suspect?

A We intended but during that time we cannot take photographs at the time of the
handling because the flash will alert the suspect. (Emphasis ours.)
JUSTICE ESCAREAL:
Why did you not position the photographer to a far distance place with camera with
telescopic lens?
A We did not Your Honor.
ATTY. JIMENEZ:
So was it your intention to take photographs only at the time that he is already being
arrested?
A Yes sir. 32
xxx xxx xxx
Petitioner insists that when his hands were placed under ultra-violet light, both were found negative for flourescent
powder. This is petitioner's own conclusion which is not supported by evidence. Such self-serving statement will not
prevail over the clear and competent testimony and the report 33 submitted by the forensic expert of the NBI Ms.
Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's right palmar hand positive for
flourescent powder, the same hand he used, according to witnesses Resoso and Sta. Maria Jr., to get the money from
the latter.
xxx xxx xxx
Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI?
A Since 1981 sir.
Q JUSTICE ESCAREAL:
Q By the way, is the defense willing to admit that the witness is a competent as . . . .
ATTY. JIMENEZ:
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic examination in the person of one Dave
Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would you be able to recognize
him?
ATTY. JIMENEZ:

We admit that the accused is the one examined by the witness.

ATTY. CAOILI:
Did you prepare the result of the examination in writing?
A Yes sir.
PROS. CAOILI:
Showing to you Physic Examination No. 90-961 which for purposes of identification has
already been marked as Exh. H what relation has this have with the report that you
mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under the ultra violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the palmer hands of the suspect gave positive
result for the presence of flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the pants were examined. Under
the ultra violet lamp the presence of the flourescent powder of the t-shirts and pants
cannot be seen or distinguished because the fibers or the material of the cloth under the
ultra violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the ultra violent lamp was
flouresce?
A The materials or the fibers of the clothings it could have been dyed with flourescent
dyes sir.34
xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's claim that he was set up by Engr. Sta.
Maria Sr. and Engr. Resoso for no other purpose but revenge on account, for petitioner's failure to recommend the
Sta. Maria Construction to perform the extra electrical works. 35
The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of the construction company is hardly
plausible. It is highly improbable for the company to embark on a malicious prosecution of an innocent

person for the simple reason that such person had recommended the services of another construction firm.
And it is extremely impossible for such company to enlist the cooperation and employ the services of the
government's chief investigative agency for such an anomalous undertaking. It is more in accord with
reason and logic to presuppose that there was some sort of a mischievous demand made by the accused in
exchange for certain favorable considerations, such as, favorable recommendation on the completeness of
the project, hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for the occurrence
of the meeting and the demand for money is infinite and boundless. 36
As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the construction of
another DOST building, would not risk his business or livelihood just to exact revenge which is neither profitable
nor logical. As we aptly stated in Maleg v. Sandiganbayan: 37
It is hard to believe that the complainant who is a contractor would jeopardize and prejudice his business
interests and risk being blacklisted in government infrastructure projects, knowing that with the institution
of the case, he may find it no longer advisable nor profitable to continue in his construction ventures. It is
hardly probable that the complainant would weave out of the blue a serious accusation just to retaliate and
take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary evidence
presented during the trial, the guilt of petitioner has been established beyond reasonable doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

THIRD DIVISION

HANNAH EUNICE D. SERANA, G.R. No. 162059

Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.
SANDIGANBAYAN and Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondents. January 22, 2008
x--------------------------------------------------x
DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholar** accused, along with her brother, of swindling
government funds?

MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa
pinararatangan ng estafa ng pera ng bayan?
The jurisdictional question is posed in this petition for certiorari assailing the Resolutions[1] of the
Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and her motion for
reconsideration.
The Antecedents
Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a
state university is known as a government scholar. She was appointed by then President Joseph Estrada
on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending
on December 31, 2000.
In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex
in UP Diliman.[2] On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and
Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI).[3]
One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex. [4] President Estrada gave Fifteen
Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the
funds, according to the information, was the Office of the President.
The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding student regent, Kristine Clare
Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of
student councils within the state university, consequently filed a complaint for Malversation of Public Funds and
Property with the Office of the Ombudsman.[6]
On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her
brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.[7] The
Information reads:
The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby
accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa,
defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended
committed as follows:
That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the Student
Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of
her official functions, committing the offense in relation to her office and taking advantage of her
position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private
individual, did then and there wilfully, unlawfully and feloniously defraud the government by
falsely and fraudulently representing to former President Joseph Ejercito Estrada that the
renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed
as President Joseph Ejercito Estrada Student Hall, and for which purpose accused HANNAH
EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00),
Philippine Currency, from the Office of the President, and the latter relying and believing on said
false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No.
91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00),
which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and
misappropriated for their personal use and benefit, and despite repeated demands made upon the
accused for them to return aforesaid amount, the said accused failed and refused to do so to the
damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any
jurisdiction over the offense charged or over her person, in her capacity as UP student regent.
Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the
crimes or offenses over which the Sandiganbayan has jurisdiction. [8]It has no jurisdiction over the crime
of estafa.[9] It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by
Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes
Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction.
She also argued that it was President Estrada, not the government, that was duped. Even assuming that she
received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government. [10]
Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was
not a public officer since she merely represented her peers, in contrast to the other regents who held their positions
in an ex officio capacity. She added that she was a simple student and did not receive any salary as a student regent.
She further contended that she had no power or authority to receive monies or funds. Such power was vested with
the Board of Regents (BOR) as a whole. Since it was not alleged in the information that it was among her functions
or duties to receive funds, or that the crime was committed in connection with her official functions, the same is
beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.[11]
The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of the law. Section 4(b) of Presidential
Decree (P.D.) No. 1606 clearly contains the catch-all phrase in relation to office, thus, the Sandiganbayan has
jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the
money is a matter of defense. It should be threshed out during a full-blown trial.[13]
According to the Ombudsman, petitioner, despite her protestations, was a public officer. As a member of the BOR,
she had the general powers of administration and exercised the corporate powers of UP. Based on Mechems
definition of a public office, petitioners stance that she was not compensated, hence, not a public officer, is
erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted
to include allowances. By this definition, petitioner was compensated.[14]
Sandiganbayan Disposition
In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit. [15] It
ratiocinated:
The focal point in controversy is the jurisdiction of the Sandiganbayan over this case.
It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly
pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also
has jurisdiction over other offenses committed by public officials and employees in relation to
their office. From this provision, there is no single doubt that this Court has jurisdiction over the
offense of estafa committed by a public official in relation to his office.
Accused-movants claim that being merely a member in representation of the student body, she
was never a public officer since she never received any compensation nor does she fall under
Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act
No. 8249 which provides:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:
(A) x x x

(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. (Italics supplied)
It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive
jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of
their salary grades, because the primordial consideration in the inclusion of these officials is the
nature of their responsibilities and functions.
Is accused-movant included in the contemplated provision of law?
A meticulous review of the existing Charter of the University of the Philippines reveals that the
Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of
administration and corporate powers in the university, such as: 1) To receive and appropriate to
the ends specified by law such sums as may be provided by law for the support of the university;
2) To prescribe rules for its own government and to enact for the government of the university
such general ordinances and regulations, not contrary to law, as are consistent with the purposes of
the university; and 3) To appoint, on recommendation of the President of the University,
professors, instructors, lecturers and other employees of the University; to fix their compensation,
hours of service, and such other duties and conditions as it may deem proper; to grant to them in
its discretion leave of absence under such regulations as it may promulgate, any other provisions
of law to the contrary notwithstanding, and to remove them for cause after an investigation and
hearing shall have been had.
It is well-established in corporation law that the corporation can act only through its board of
directors, or board of trustees in the case of non-stock corporations. The board of directors or
trustees, therefore, is the governing body of the corporation.
It is unmistakably evident that the Board of Regents of the University of the Philippines is
performing functions similar to those of the Board of Trustees of a non-stock corporation. This
draws to fore the conclusion that being a member of such board, accused-movant undoubtedly
falls within the category of public officials upon whom this Court is vested with original exclusive
jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27
or higher under the Compensation and Position Classification Act of 1989.
Finally, this court finds that accused-movants contention that the same of P15 Million was
received from former President Estrada and not from the coffers of the government, is a matter a
defense that should be properly ventilated during the trial on the merits of this case. [16]
On November 19, 2003, petitioner filed a motion for reconsideration. [17] The motion was denied with
finality in a Resolution dated February 4, 2004.[18]
Issue
Petitioner is now before this Court, contending that THE RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACKAND/OR EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO
JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION. [19]
In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction
over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense

charged was not committed in relation to her office; (d) the funds in question personally came from President
Estrada, not from the government.
Our Ruling
The petition cannot be granted.
Preliminarily, the denial of a motion to
quash is not correctible by certiorari.
We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-established is
the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for
petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to
quash.[20]Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often
dismissed.[21] The evident reason for this rule is to avoid multiplicity of appeals in a single action. [22]
In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly explained and illustrated the rule
and the exceptions, thus:
As a general rule, an order denying a motion to dismiss is merely interlocutory and
cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The
ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision
is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order
denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal
lies from a judgment of acquittal.
This general rule is subject to certain exceptions. If the court, in denying the motion to
dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the
defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction
over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion
to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and
capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate. The following are a few examples of the exceptions to the general rule.
In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on
lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and
prohibition against the City Court of Manila and directed the respondent court to dismiss the case.
In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on
lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined
the respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on
improper venue, this Court granted the petition for prohibition and enjoined the respondent judge
from taking cognizance of the case except to dismiss the same.
In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on
bar by prior judgment, this Court granted the petition for certiorari and directed the respondent
judge to dismiss the case.
In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based
on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended
complaint.

In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after
the motion to quash based on double jeopardy was denied by respondent judge and ordered him to
desist from further action in the criminal case except to dismiss the same.
In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on
prescription was set aside on certiorari and the criminal case was dismissed by this Court.[24]
We do not find the Sandiganbayan to have committed a grave abuse of discretion.
The jurisdiction of the Sandiganbayan is
set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.
We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section
4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to
Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the
Sandiganbayan.[25]She repeats the reference in the instant petition for certiorari[26] and in her memorandum of
authorities.[27]

We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that
petitioner repeated this claim twice despite corrections made by the Sandiganbayan. [28]
Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that
determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the
Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos onJune 11, 1978. It was promulgated to attain the highest norms of official conduct required of
public officers and employees, based on the concept that public officers and employees shall serve with the highest
degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people. [29]
P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10,
1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. [30]
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan
jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which
was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the
jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
A. Violations of Republic Act No. 3019, as amended, other 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 989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and other city department heads;

(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial director
and those holding the rank of senior superintended or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office
of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations.
(2) Members of Congress and officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of
the Constitution; and
(5) All other national and local officials classified as Grade 27 and higher under the Compensation
and Position Classification Act of 1989.
B. Other offenses of felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in subsection a of this section in relation to their
office.
C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos.
1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or
higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned
above, exclusive original jurisdiction thereof shall be vested in the proper regional court,
metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments,
resolutions or order of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the
writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs
and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed under Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall
not be exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the
Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for
review to the Court of Appeals, shall apply to appeals and petitions for review filed with the
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the

Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the
People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations,
they shall be tried jointly with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them.
Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of civil liability shall, at all times, be
simultaneously instituted with, and jointly determined in, the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil
action separately from the criminal action shall be recognized: Provided, however, That where the
civil action had heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court,
said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may
be, for consolidation and joint determination with the criminal action, otherwise the separate civil
action shall be deemed abandoned.
Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses
certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead
thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed
with the Sandiganbayan.[32]
R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has
jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the
Sandiganbayan but with prohibition on private individuals. We quote:
Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person
having family or close personal relation with any public official to capitalize or exploit or take
advantage of such family or close personal relation by directly or indirectly requesting or receiving
any present, gift or material or pecuniary advantage from any other person having some business,
transaction, application, request or contract with the government, in which such public official has
to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in
the third civil degree. The word close personal relation shall include close personal friendship,
social and fraternal connections, and professional employment all giving rise to intimacy which
assures free access to such public officer.
(b) It shall be unlawful for any person knowingly to induce or cause any public official to
commit any of the offenses defined in Section 3 hereof.
In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the
Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their
penalties.
Sandiganbayan has jurisdiction over
the offense of estafa.
Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes
cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of
Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision.
The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to
avoid an unjust or an absurd conclusion.[33] Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens

et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be
adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawatawa.
Every section, provision or clause of the statute must be expounded by reference to each other in order to
arrive at the effect contemplated by the legislature. [34] The intention of the legislator must be ascertained from the
whole text of the law and every part of the act is to be taken into view.[35] In other words, petitioners interpretation
lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best
interpreter of a statute is the statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay
marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na
interpretasyon ay ang mismong batas.
Section 4(B) of P.D. No. 1606 reads:
B. Other offenses or felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in subsection a of this section in relation to their
office.
Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their
office. We see no plausible or sensible reason to exclude estafaas one of the offenses included in Section 4(B) of
P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin
requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D.
No. 1606, as amended, and that (b) the offense is committed in relation to their office.
In Perlas, Jr. v. People,[37] the Court had occasion to explain that the Sandiganbayan has jurisdiction over an
indictment for estafa versus a director of the National Parks Development Committee, a government
instrumentality. The Court held then:

The National Parks Development Committee was created originally as an Executive

Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other
national parks (Executive Order No. 30). It was later designated as the National Parks
Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs.
Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman
respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development,
Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued
pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of
the President (E.O. No. 709, dated July 27, 1981).
Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular
government agency under the Office of the President and allotments for its maintenance and
operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).
The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v.
Sandiganbayan.[38] Pertinent parts of the Courts ruling in Bondoc read:
Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial
Court, for the simple reason that the latter would not have jurisdiction over the offenses. As
already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases
and those of the government employees separately charged for the same crimes, has not altered the
nature of the offenses charged, as estafa thru falsification punishable by penalties higher
than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by
government employees in conspiracy with private persons, including Bondoc. These crimes are
within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken

cognizance of by the regular courts, apart from the fact that even if the cases could be so
transferred, a joint trial would nonetheless not be possible.
Petitioner UP student regent
is a public officer.
Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as
a UP student regent. This is not the first or likely the last time that We will be called upon to define a public
officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public
officer.[39] The 1987 Constitution does not define who are public officers. Rather, the varied definitions and
concepts are found in different statutes and jurisprudence.
In Aparri v. Court of Appeals,[40] the Court held that:
A public office is the right, authority, and duty created and conferred by law, by which
for a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be
exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The
right to hold a public office under our political system is therefore not a natural right. It exists,
when it exists at all only because and by virtue of some law expressly or impliedly creating and
conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an
office, or even an absolute right to hold office. Excepting constitutional offices which provide for
special immunity as regards salary and tenure, no one can be said to have any vested right in an
office or its salary (42 Am. Jur. 881).
In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public office:
A public office is the right, authority and duty, created and conferred by law, by which,
for a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so invested is a public officer.[42]
Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition feepaying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan
also has jurisdiction
over
other
officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held that while the first part of Section 4(A)
covers only officials with Salary Grade 27 and higher, its second part specifically includes other
executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of
law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she
is placed there by express provision of law.[44]
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents,
directors or trustees, or managers of government-owned or controlled corporations, state universities or educational
institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR
performs functions similar to those of a board of trustees of a non-stock corporation.[45] By express mandate of law,
petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.
Moreover, it is well established that compensation is not an essential element of public office. [46] At most, it is
merely incidental to the public office.[47]
Delegation of sovereign functions is essential in the public office. An investment in an individual of some
portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one
a public officer.[48]
The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP
performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the

sciences, and arts, and giving professional and technical training. [49] Moreover, UP is maintained by the Government
and it declares no dividends and is not a corporation created for profit.[50]
The offense charged was committed
in relation to public office, according
to the Information.
Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have
jurisdiction over the offense because it was not committed in relation to her office.
According to petitioner, she had no power or authority to act without the approval of the BOR. She adds
there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that
her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private
capacity and not in relation to public office.
It is axiomatic that jurisdiction is determined by the averments in the information. [51] More than that, jurisdiction is
not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a
motion to quash.[52] Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant
or respondent.[53]
In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student
regent of U.P., while in the performance of her official functions,committing the offense in relation to her office and
taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private
individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring
supplied)
Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the
information based on this ground.
Source of funds is a defense that should
be raised during trial on the merits.
It is contended anew that the amount came from President Estradas private funds and not from the government
coffers. Petitioner insists the charge has no leg to stand on.
We cannot agree. The information alleges that the funds came from the Office of the President and not its then
occupant, President Joseph Ejercito Estrada. Under the information, it is averred that petitioner requested the
amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the
latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land
Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00).
Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense
that should be ventilated during the trial on the merits of the instant case.[54]
A lawyer owes candor, fairness
and honesty to the Court.
As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of
P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition
for certiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of
the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote
or misrepresent.
The Court stressed the importance of this rule in Pangan v. Ramos,[55] where Atty Dionisio D. Ramos used
the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to

deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos
and warned that a repetition may warrant suspension or disbarment. [56]
We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before
the court should be characterized by candor and fairness.[57]The administration of justice would gravely suffer if
lawyers do not act with complete candor and honesty before the courts. [58]
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

RUBEN T. REYES
Associate Justice
G.R. No. 150540. October 28, 2003]

DIMALUB P. NAMIL, ABDULNASSER TIMAN, TERESITA G. AKOB, MALIGA AMILUDIN and EPAS
GUIAMEL, petitioners, vs. COMMISSION ON ELECTIONS, public respondent.
JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M.
MUSTAPHA, ABDULRAKMAN TALIKOP and WILSON SABIWANG, private respondents.
DECISION
CALLEJO, SR., J.:
This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, to
set aside the November 6, 2001 Resolution No. 4615, [1] promulgated by the Commission on Elections
(COMELEC) en banc[2] installing the private respondents as members of the Sangguniang Bayan of Palimbang,
Sultan Kudarat, although the petitioners had already taken their respective oaths and assumed offices in the same
elective positions.
The antecedents are as follows:
On May 14, 2001, the election for the members of the Sangguniang Bayan was held in Palimbang, Sultan
Kudarat.
On May 20, 2001, the Municipal Board of Canvassers of Palimbang issued Certificate of Canvass of Votes and
Proclamation (COCVP) No. 8031108[3] which contained, inter alia, the petitioners and the Sangguniang
Bayan winning candidates:
1. NOREN B. APIL
2. MALOD B. MOSADI
3. DIMALUB P. NAMIL
4. ABDULNASSER A. TIMAN
5. TERESITA G. AKOB
6. MABANING P. SAMAMA
7. EPAS T. GUIAMEL
8. MALIGA M. AMILUDIN
The above-named candidates took their oath, and assumed their offices on June 30, 2001[4] as members of
the Sangguniang Bayan of Palimbang.

The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109
which listed the private respondents as winners, namely:
1. JOENIME B. KAPINA
2. MONIB B. WALINGWALING
3. MAULANA G. KARNAIN
4. ABDULGAPHAR M. MUSATAPHA
5. MALOD B. MOSADI
6. ABDULRAKMAN A. TALIKOP
7. WILSON K. SABIWANG
8. MABANING P. SAMAMA
Thereafter, private respondent Joenime B. Kapina wrote the COMELEC requesting that she and the others who
were proclaimed as winners on May 21, 2001 be recognized as the winning candidates and the new members of
the Sangguniang Bayan of Palimbang, Sultan Kudarat. Appended to said letter was a certification issued by
Regional Election Director Clarita N. Callar, Region XII, Cotabato City, that the private respondents named in the
COCVP No. 8031109, issued on May 21, 2001, were duly proclaimed as the winning candidates for the said
municipality. When apprised of the said letter, the Commissioner-in-Charge for Region XII, Mehol K. Sadain,
conducted an investigation on the matter of having two (2) sets of winning candidates as members of
the Sangguniang Bayan for Palimbang. He issued Memorandum No. 2001-09-005 requiring the Law Department,
the Regional Election Registrar and the Provincial Election Supervisor to submit their respective reports/comments
on the letter. The said officers submitted their respective memorandum, thus:
1. Memo dated September 11, 2001 of Atty. Jose Balbuena, Director Law Department, to the effect that,
our Comelec field officials in Region XII who directly participated in the canvassing who were
named in (Memo No. 2001-09-001) could best provide the needed explanation and information
on the double proclamation of Sangguniang Bayan winners in Palimbang, Sultan Kudarat.
2. Memo dated September 6, 2001 of Atty. Clarita Callar, Regional Election Director, Region XII, to the
effect that the Election Assistant Amy Laguda who issued the certification on the proclamation
based on Certificate No. 8031109 dated May 21, 2001 verified the genuineness of her signature
on the said certification, and further said that at the time she issued the certification the PES had
not yet received a copy of Certificate No. 8031108 dated May 20, 2001. Further, Atty. Callar
referred to the verification of Ms. Celia Romero that per records of the RSD, the names appearing
as elected members of the Sangguniang Bayan for the Municipality of Sultan Kudarat ... are those
proclaimed in Certificate of Canvass of Votes & Proclamation No. 8031109. Incidentally, Ms.
Romero also issued a certification that the serial numbers of the Certificates of Canvass of Votes
and Proclamation were 8031108 for Lambayong, SK and 8031109 for Palimbang, SK.
3. Memo filed on September 6, 2001 by Atty. Lintang H. Bedol, PES, Sultan Kudarat, recommending that
the parties should file the appropriate case/s before the Commission, instead of coursing their
redress through the PES of Sultan Kudarat or the RED of Region XII.
4. A confidential certification of EO Malic Sansarona dated September 12, 2001 to the effect that the
Certificate of Canvass of Votes and Proclamation ... No. 8031109 dated June 21, 2001 is [the]
genuine and valid proclamation of elected Municipal Officials of the Municipality of Palimbang,
Sultan Kudarat, and that the other proclamation [No. 8031108] is fictitious and falsified.
Acting on the said Memoranda, Commissioner Sadain submitted his Recommendation[5] to the COMELEC,
thus:
1. Finds that there was a VALID PROCLAMATION of the winning candidates for positions of Members
of the Sangguniang Bayan of Palimbang, Sultan Kudarat as contained in Certificate of Canvass of
Votes and Proclamation No. 8031109;
2. That there being a VALID PROCLAMATION, there is NO NEED for adjudication on this matter; and
therefore

3. Respectfully RECOMMENDS to the Commission En Banc, the adoption of the following

recommendation [Annex D] of Atty. Jose P. Balbuena, Dir., Law Department and Atty. Gregorio
T. Saraos, Attorney II, IPD, Law Department.
PREMISES CONSIDERED, the Law Department RECOMMENDS to issue an Order for the immediate installation
of the winning members of the Sangguniang Bayan [of Palimbang, Sultan Kudarat], namely: JOENIME B.
KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B.
MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA... and for said
purpose, to direct the Brigade Commander, 60 1st Brigade Pulutana of General Santos City, Saranggani Province,
to effect and enforce the said Order and to submit his compliance within five (5) days from notice hereof.
Acting on the recommendation of Commissioner Sadain, the public respondent issued on November 6,
2001 the assailed Resolution No. 4615. The dispositive portion reads:
WHEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby RESOLVES, (1) that the
proclamation of the winning candidates contained in Certificate of Canvass of Votes and Proclamation No. 8031109
is a valid proclamation; (2) to adopt the recommendation of the Law Department which is in accordance with the
result of the investigation conducted by the Commissioner-in-Charge; and herein orders the immediate installation
of JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M.
MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND
MABANING P. SAMAMA as the duly elected members of the Sangguniang Bayan of Palimbang, Sultan
Kudarat.[6]
The petitioners contend that the public respondents Resolution No. 4615 is null and void since it was issued
without according them due notice and hearing, contrary to the enshrined principle of due process. The public
respondent thus committed a grave abuse of discretion amounting to lack or excess of jurisdiction.
The petitioners allege that they were never accorded the chance to present their side in connection with the
investigation that was purportedly conducted by Commissioner Sadain and on the memoranda/report of the public
respondents officers. The public respondent simply approved the recommendation of Commissioner Sadain. The
petitioners were kept in the dark, learned about the controversy only when they were notified of the assailed
resolution of the public respondent.
The public respondent, through the Office of the Solicitor General, as well as the private respondents, asserts
that the petitioners failed to file a motion for reconsideration of the assailed decision before instituting this action
with this Court; hence, the petition is premature. It is pointed out that the public respondent has broad powers to
enforce all election laws, it has the power to control and supervise the proceedings of the board of canvassers, and
the power to suspend or annul proclamation. When it learned about the two (2) sets of winning candidates as
members of Sangguniang Bayan of Palimbang, Sultan Kudarat, the public respondent required an investigation to be
conducted by one of the commissioners, who required the election officers in the place concerned to submit their
reports on the matter. After a study of the various reports, it was ascertained that COCVP (C.E Form No. 25) No.
8031108 was null and void, fictitious and falsified. The public respondent made a finding that the genuine COCVP
was that one bearing Serial No. 8031109, intended for the Municipality of Palimbang, Sultan Kudarat. It was thus
incumbent upon the public respondent to order the immediate installation of the winning candidates on the basis of
the genuine COCVP to give effect to the will of the electorate, conformably to its mandate under Section 242 of the
Omnibus Election Code and the ruling of this Court in Aguam vs. Commission on Elections.[7]
The public respondent further asserts that the twin requirement of notice and hearing in annulment of
proclamation is not applicable when the proclamation is null and void, citing Utto vs. Commission on Elections.[8]
The petition is meritorious.
While it is true that the COMELEC is vested with a broad power to enforce all election laws, the same is
subject to the right of the parties to due process. In this case, the petitioners had been proclaimed as the winning
candidates and had assumed their office. Since then, they had been exercising their rights and performing their
duties as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation on May 20,
2001 enjoys the presumption of regularity and validity since no contest or protest was even filed assailing the
same.The petitioners cannot be removed from office without due process of law. Due process in the proceedings

before the public respondent exercising its quasi-judicial functions, requires due notice and hearing, among others.
Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of
any candidate, we also ruled inFarias vs. Commission on Elections, Reyes vs. Commission on
Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally
annul a proclamation or suspend the effects of a proclamation without notice and hearing.[9]
In this case, the public respondent nullified the proclamation of the petitioners and ousted them from their
office as members of the Sangguniang Bayan of Palimbang, based solely onthe recommendations of its law
department and of Commissioner Sadain, and on the memoranda of its officers. The petitioners were not accorded a
chance to be heard on the said recommendations and the memorandum of Regional Election Director Clarita Callar,
certification of Celia Romero, and certification of Election Officer Malic Sansarona dated September 12,
2001 before it issued the assailed resolution.
The conclusion of the public respondent that the basis of the petitioners proclamation was a fictitious and
falsified document was grounded, inter alia, on a confidential certification of Election Officer Malic Sansarona
dated September 12, 2001.[10] However, it appears that a certification[11] was earlier issued by the same election
officer on June 25, 2001, stating that the petitioners whose names were listed as winning candidates as Sangguniang
Bayan members in the COCVP (C.E. Form No. 25) No. 8031108, the very certificate declared by the public
respondent in its Resolution No. 4615 as fictitious and falsified document, won in the elections.
In the case of Caruncho III vs. Commission on Elections,[12] this Court has held that due process in quasijudicial proceedings before the COMELEC requires due notice and hearing. The proclamation of a winning
candidate cannot be annulled if he has not been notified of any motion to set aside his proclamation. This Court also
ruled in Sandoval vs. Commission on Elections[13] that:
... Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and
SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the
proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial
evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his
evidence to support his side of the case and that the evidence should be considered in the adjudication of the
case. The facts show that COMELEC set aside the proclamation of petitioner without the benefit of prior notice and
hearing and it rendered the questioned order based solely on private respondents allegations. We held in Bince, Jr.
vs. COMELEC:
Petitioner cannot be deprived of his office without due process of law. Although public office is not property under
Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is,
nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial
functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate
cases, the power to annul or suspend the proclamation of any candidate, We had ruled in Farinas vs. Commission on
Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is
without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice
and hearing.
The public respondents reliance on the ruling of this Court in Utto vs. Commission on Elections[14] is
misplaced. The Court, in that case, held that the twin-requirement of notice and hearing in an annulment of
proclamation is not applicable because of the illegality of petitioners proclamation. [15] The factual circumstances in
the instant petition are far different from those obtaining in Utto. In the Utto case, a notice of appeal was filed
questioning the ruling of the board of canvassers but, the latter proceeded in proclaiming Utto as the winning
candidate. This made the proclamation illegal. In the present case, nobody questioned the petitioners proclamation.
We rule that the petition in this case was not prematurely filed. Generally, a motion for reconsideration is a
pre-requisite to the viability of a special civil action for certiorari. However, there are exceptions to the rule. The
aggrieved party is not obliged to first file a motion for reconsideration of the assailed resolution before filing a
petition under Rule 65 of the Rules of Court, as amended where, as in this case, (1) the question is purely legal, (2)
judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the controverted
acts violate due process.[16]

The private respondents cannot invoke Section 242 of the Omnibus Election Code to fortify their cause,
because the said law specifically refers to pre-proclamation controversies, thus:
Sec. 242. Commissions exclusive jurisdiction of all pre-proclamation controversies. The Commission shall have
exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after
due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul
partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the
succeeding section.[17]
Even the fact that the public respondent initiated the proceedings for the partial or total annulment of an illegal
proclamation would not dispense with the requirements of notice and hearing. This was made clear in Sandoval vs.
Commission on Elections:[18]
Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to
annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order
a partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation,
if one has been made. .
The phrase motu proprio does not refer to the annulment of proclamation but to the manner of initiating the
proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which
annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by
written petition. In either case, notice and hearing is required. This is clear from the language of the law.[19]
IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Resolution No. 4615 of
the public respondent COMELEC en banc dated November 6, 2001, is hereby REVERSED and SET ASIDE.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
Vitug, J., in the result.
Ynares-Santiago, J. on leave.
G.R. No. 147387. December 10, 2003]

RODOLFO C. FARIAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO,

AS MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN
THEIR OWN BEHALF AND IN REPRESENTATION OF THE MEMBERS OF THE MINORITY
IN THE HOUSE OF REPRESENTATIVES, petitioners, vs. THE EXECUTIVE SECRETARY,
COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR., SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND
SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, respondents.
[G.R. No. 152161. December 10, 2003]

CONG. GERRY A. SALAPUDDIN, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

DECISION
CALLEJO, SR., J.:

Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as
unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section
67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides:
SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be
considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Farias, Manuel M.
Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were
members of the minority bloc in the House of Representatives. Impleaded as respondents are: the Executive
Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the Commission on Elections,
the Secretary of the Department of the Interior and Local Government (DILG), the Secretary of the Senate and the
Secretary General of the House of Representatives.
The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the
House of Representatives. Impleaded as respondent is the COMELEC.
Legislative History of Republic Act No. 9006
Rep. Act No. 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices, is a consolidation of the following bills originating from the House of
Representatives and the Senate, respectively:
House Bill (HB) No. 9000 entitled AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION
PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE
KNOWN AS THE OMNIBUS ELECTION CODE, AS AMENDED, AND FOR OTHER PURPOSES; [1]
Senate Bill (SB) No. 1742 entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST,
PEACEFUL, AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES. [2]
A Bicameral Conference Committee, composed of eight members of the Senate [3] and sixteen (16) members of
the House of Representatives,[4] was formed to reconcile the conflicting provisions of the House and Senate versions
of the bill.
On November 29, 2000, the Bicameral Conference Committee submitted its Report, [5] signed by its members,
recommending the approval of the bill as reconciled and approved by the conferees.
During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras
proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point
of order commenting that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol
thereupon moved that the House return the report to the Bicameral Conference Committee in view of the proposed
amendment thereto. Rep. Dilangalen expressed his objection to the proposal. However, upon viva voce voting, the
majority of the House approved the return of the report to the Bicameral Conference Committee for proper action. [6]
In view of the proposed amendment, the House of Representatives elected anew its conferees [7] to the
Bicameral Conference Committee.[8] Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the
House elected another set of conferees[9] to the Bicameral Conference Committee.[10]
On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the
House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB
No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral Conference
Committee. The Chair responded that the Bicameral Conference Report was a new one, and was a result of the
reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked that he be given time to
examine the new report. Upon motion of Rep. Apostol, the House deferred the approval of the report until the other
members were given a copy thereof.[11]

After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee
Report on the disagreeing provisions of HB No. 9000 and SB No. 1742.The House approved the report with 125
affirmative votes, 3 negative votes and no abstention. In explaining their negative votes, Reps. Farias and Garcia
expressed their belief that Section 14 thereof was a rider. Even Rep. Escudero, who voted in the affirmative,
expressed his doubts on the constitutionality of Section 14. Prior to casting his vote, Rep. Dilangalen observed that
no senator signed the Bicameral Conference Committee Report and asked if this procedure was regular. [12]
On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the
contrasting provisions of SB No. 1742 and HB No. 9000.
Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then
Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the
Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P. Nazareno as the
consolidation of House Bill No. 9000 and Senate Bill No. 1742, and finally passed by both Houses on February 7,
2001.
President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.
The Petitioners Case
The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it
repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article
VI of the Constitution, requiring every law to have only one subject which should be expressed in its title.
According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in
Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act
No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily
deals with the lifting of the ban on the use of media for election propaganda and the elimination of unfair election
practices, while Section 67 of the Omnibus Election Code imposes a limitation on elective officials who run for an
office other than the one they are holding in a permanent capacity by considering them as ipso facto resigned
therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is thus
not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006.
The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the
Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof
which imposes a similar limitation to appointive officials, thus:
SEC. 66. Candidates holding appointive office or position. Any person holding a public appointive office or
position, including active members of the Armed Forces of the Philippines, and officers and employees in
government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of
Section 67, an elective official who runs for office other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in
public office even as they campaign for reelection or election for another elective position. On the other hand,
Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso
facto resigned from their offices upon the filing of their certificates of candidacy.
The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its
enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the
law which provides that [t]his Act shall take effect upon its approval is a violation of the due process clause of the
Constitution, as well as jurisprudence, which require publication of the law before it becomes effective.
Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not
have been repealed. The petitioners cited the ruling of the Court inDimaporo v. Mitra, Jr.,[13] that Section 67 of the
Omnibus Election Code is based on the constitutional mandate on the Accountability of Public Officers: [14]

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives.
Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with
grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members of the
House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the
filing of their respective certificates of candidacy.
The Respondents Arguments
For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the
petitions contending, preliminarily, that the petitioners have no legal standing to institute the present suit. Except for
the fact that their negative votes were overruled by the majority of the members of the House of Representatives, the
petitioners have not shown that they have suffered harm as a result of the passage of Rep. Act No. 9006. Neither do
petitioners have any interest as taxpayers since the assailed statute does not involve the exercise by Congress of its
taxing or spending power.
Invoking the enrolled bill doctrine, the respondents refute the petitioners allegations that irregularities attended
the enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing
on the bill and the certification signed by the respective Secretaries of both houses of Congress, constitute proof
beyond cavil that the bill was duly enacted into law.
The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus
Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title
of Rep. Act No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections
through Fair Election Practices, is so broad that it encompasses all the processes involved in an election exercise,
including the filing of certificates of candidacy by elective officials.
They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in
its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a
certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer
considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus
Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective
official ipso facto resigned from his office upon the filing of his certificate of candidacy for another elective
office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to
finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other elective
positions, other than the one they are holding in a permanent capacity.
The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated
in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its
contents. It must be deemed sufficient that the title be comprehensive enough reasonably to include the general
subject which the statute seeks to effect without expressing each and every means necessary for its
accomplishment. Section 26(1) of Article VI of the Constitution merely calls for all the parts of an act relating to its
subject to find expression in its title. Mere details need not be set forth.
According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving
Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the
Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial
distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate
based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot,
therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly
situated are treated alike, both as to rights conferred and responsibilities imposed.
Further, Section 16, or the Effectivity clause, of Rep. Act No. 9006 does not run afoul of the due process clause
of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the
section providing for penalties in cases of violations thereof presume that the formalities of the law would be

observed, i.e., charges would first be filed, and the accused would be entitled to a hearing before judgment is
rendered by a court having jurisdiction. In any case, the issue about lack of due process is premature as no one has,
as yet, been charged with violation of Rep. Act No. 9006.
Finally, the respondents submit that the respondents Speaker and Secretary General of the House of
Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members thereof
who ran for the Senate during the May 14, 2001 elections. These respondents merely complied with Rep. Act No.
9006, which enjoys the presumption of validity until declared otherwise by the Court.
The Courts Ruling
Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the
respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions at bar.
The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and
as taxpayers and registered voters.
Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement. [15] The rationale for
requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of
the controversy is to assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions. [16]
However, being merely a matter of procedure, this Court, in several cases involving issues of overarching
significance to our society,[17] had adopted a liberal stance on standing. Thus, in Tatad v. Secretary of the
Department of Energy,[18] this Court brushed aside the procedural requirement of standing, took cognizance of, and
subsequently granted, the petitions separately filed by then Senator Francisco Tatad and several members of the
House of Representatives assailing the constitutionality of Rep. Act No. 8180 (An Act Deregulating the
Downstream Oil Industry and For Other Purposes).
The Court likewise took cognizance of the petition filed by then members of the House of Representatives
which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the
Autonomous Region in Muslim Mindanao) in Chiongbian v. Orbos.[19] Similarly, the Court took cognizance of the
petition filed by then members of the Senate, joined by other petitioners, which challenged the validity of Rep. Act
No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of Finance.[20]
Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of
acts, decisions, rulings, or orders of various government agencies or instrumentalities in Del Mar v. Philippine
Amusement and Gaming Corporation,[21] Kilosbayan, Inc. v. Guingona, Jr.,[22] Philippine Constitution Association
v. Enriquez,[23] Albano v. Reyes,[24]and Bagatsing v. Committee on Privatization.[25]
Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code,
which this Court had declared in Dimaporo[26] as deriving its existence from the constitutional provision on
accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one of
overarching significance that justifies this Courts adoption of a liberal stance vis--vis the procedural matter on
standing. Moreover, with the national elections barely seven months away, it behooves the Court to confront the
issue now and resolve the same forthrightly. The following pronouncement of the Court is quite apropos:
... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality . . . be now resolved. It may likewise be added that the exceptional character of the situation that
confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections beings
barely six months away, reinforce our stand.[27]
Every statute is presumed valid.[28] The presumption is that the legislature intended to enact a valid, sensible
and just law and one which operates no further than may be necessary to effectuate the specific purpose of the
law.[29]

It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental
law.[30] And where the acts of the other branches of government run afoul of the Constitution, it is the judiciarys
solemn and sacred duty to nullify the same.[31]
Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.
Section 14 of Rep. Act
No. 9006 Is Not a Rider[32]
At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides:
Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of
Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11
of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and
regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or
amended accordingly.
The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:
SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be
considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
Section 26(1), Article VI of the Constitution provides:
SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title
thereof.
The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject
finding expression in its title.[33]
To determine whether there has been compliance with the constitutional requirement that the subject of an act
shall be expressed in its title, the Court laid down the rule that
Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as
to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title
should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough
reasonably to include the general object which a statute seeks to effect, without expressing each and every end and
means necessary or convenient for the accomplishing of that object. Mere details need not be set forth. The title need
not be an abstract or index of the Act.[34]
The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices. Section 2 of the law provides not only the declaration of
principles but also the objectives thereof:
Sec. 2. Declaration of Principles. The State shall, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of media of communication or information to guarantee or
ensure equal opportunity for public service, including access to media time and space, and the equitable right to
reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and
credible elections.
The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and
discrimination.[35]

The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to
include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said
repeal of Section 67 of the Code be expressed in the title is to insist that the title be a complete index of its
content.[36]
The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on
elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No.
9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the one
subject-one title rule. This Court has held that an act having a single general subject, indicated in the title, may
contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or
foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and
means of carrying out the general subject.[37]
The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive:
SEN. LEGARDA-LEVISTE:
Yes, Mr. Chairman, I just wanted to clarify.
So all were looking for now is an appropriate title to make it broader so that it would cover this
provision [referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? Thats
all. Because I believe ...
THE CHAIRMAN (REP. SYJUCO):
We are looking for an appropriate coverage which will result in the nomenclature or title.
SEN. LEGARDA-LEVISTE:
Because I really do not believe that it is out of place. I think that even with the term fair election
practice, it really covers it, because as expressed by Senator Roco, those conditions inserted earlier
seemed unfair and it is an election practice and, therefore, I think, Im very comfortable with the title
Fair Election Practice so that we can get over with these things so that we dont come back again
until we find the title. I mean, its one provision which I think is fair for everybody. It may seem like
a limitation but this limitation actually provides for fairness in election practices as the title implies.
THE CHAIRMAN (REP. SYJUCO):
Yes.
SEN. LEGARDA-LEVISTE:
So I would want to beg the House contingent, lets get it over with. To me, ha, its not a very touchy
issue. For me, its even a very correct provision. I feel very comfortable with it and it was voted in
the Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a
Bicam just for the title Is that what youre ...?
THE CHAIRMAN (REP. SYJUCO):
Its not the title per se, its the coverage. So if you will just kindly bear with us. Im happy that there is
already one comfortable senator there among ... several of us were also comfortable with it. But it
would be well that when we rise from this Bicam that were all comfortable with it.
THE CHAIRMAN (SEN. ROCO):
Yes. Anyway, lets listen to Congressman Marcos.
REP. MARCOS:
Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions
deals with the area of propaganda and political advertising, the complete title is actually one that
indulge full coverage. It says An Act to enhance the holding of free, orderly, honest ... elections
through fair election practices. But as you said, we will put that aside to discuss later one.

Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly

adequate in that it says that it shall ensure candidates for public office that may be free from any
form of harassment and discrimination.
Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code
is a form of harassment or discrimination. And so I think that in the effort at leveling the playing
field, we can cover this and it should not be considered a rider.
SEN. LEGARDA-LEVISTE:
I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is
covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that
the House contingent would agree to this so that we can finish it now. And it expressly provides for
fair election practices because ...
THE CHAIRMAN (SEN. ROCO):
Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that
is more generic so that then we have less of an objection on constitutionality. I think thats the
theory. So, there is acceptance of this.
Maybe we should not call it na limitation on elected officials. Maybe we should say the special
provision on elected officials. So how is that? Alam mo ito ...
REP. MARCOS:
I think we just change the Section 1, the short title.
THE CHAIRMAN (SEN. ROCO):
Also, Then we say - - on the short title of the Act, we say ...
REP. MARCOS:
What if we say fair election practices? Maybe that should be changed...
THE CHAIRMAN (SEN. ROCO):
O, sige, fine, fine. Lets a brainstorm. Equal...
REP. PADILLA:
Mr. Chairman, why dont we use An Act rationalizing the holding of free, orderly, honest, peaceful
and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus
Election Code?
THE CHAIRMAN (SEN. ROCO):
Why dont we remove fair and then this shall be cited as Election Practices Act?
REP. PICHAY:
Thats not an election practice. Thats a limitation.
THE CHAIRMAN (SEN. ROCO):
Ah - - - ayaw mo iyong practice. O, give me another noun.
REP. MARCOS:
The Fair Election.
THE CHAIRMAN (SEN. ROCO):
O, Fair Election Act.

REP. MACARAMBON:
Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free,
orderly, honest, peaceful and ensure equal opportunity for public service through fair election
practices?
REP. PICHAY:
Fair election practices?
REP. MACARAMBON:
Yeah. To ensure equal opportunity for public service through fair ...
THE CHAIRMAN (SEN. ROCO):
Wala nang practices nga.
REP. PICHAY:
Wala nang practices.
THE CHAIRMAN (SEN. ROCO):
It shall be cited as Fair Election Act.
(Informal discussions)
REP. PICHAY:
Approve na iyan.
THE CHAIRMAN (SEN. ROCO):
Done. So, okay na iyon. The title will be Fair Election Act.
The rest wala nang problema ano?
VOICES:
Wala na.
REP. MACARAMBON:
Wala na iyong practices?
THE CHAIRMAN (SEN. ROCO):
Wala na, wala na. Mahina tayo sa practice, eh.
O, wala na? We will clean up.
REP. MARCOS:
Title?
THE CHAIRMAN (SEN. ROCO):
The short title, This Act ...
THE CHAIRMAN (REP. SYJUCO):
Youre back to your No. 21 already.
REP. MARCOS:
The full title, the same?

THE CHAIRMAN (SEN. ROCO):

Iyon na nga. The full title is An Act to enhance the holding ... Thats the House version, eh, dahil
pareho, hindi ba? Then the short title This Act shall be known as the Fair Election Act. [38]
The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination
that had to be done away with and repealed. The executive department found cause with Congress when the
President of the Philippines signed the measure into law. For sure, some sectors of society and in government may
believe that the repeal of Section 67 is bad policy as it would encourage political adventurism. But policy matters
are not the concern of the Court. Government policy is within the exclusive dominion of the political branches of the
government.[39] It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed,
whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means
to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be
exercised in a particular manner are matters for the judgment of the legislature, and the serious conflict of opinions
does not suffice to bring them within the range of judicial cognizance. [40] Congress is not precluded from repealing
Section 67 by the ruling of the Court in Dimaporo v. Mitra[41] upholding the validity of the provision and by its
pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it
imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective
of election laws the fair, honest and orderly election of truly deserving members of Congress is achieved.
Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its
title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment
into law of matters which have not received the notice, action and study of the legislators and the public. [42] In this
case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election
Code as the same was amply and comprehensively deliberated upon by the members of the House. In fact, the
petitioners, as members of the House of Representatives, expressed their reservations regarding its validity prior to
casting their votes. Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of
the Omnibus Election Code.
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution[43]
The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective
officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause
of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by substantial distinctions that make real differences, one class may
be treated and regulated differently from the other. [44] The Court has explained the nature of the equal protection
guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is to operate. It does not demand absolute equality
among residents; it merely requires that all persons shall be treated alike,under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction between those who fall within such class and those
who do not.[45]
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy
their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. [46] On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure[47] while others serve at the pleasure of the appointing
authority.[48]

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any
partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral
activities.[49]
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the
power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive
officials, is anchored upon material and significant distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.
The Enrolled Bill Doctrine
Is Applicable In this Case
Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that
the entire law should be nullified. They contend that irregularities attended the passage of the said law particularly in
the House of Representatives catalogued thus:
a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its
session on February 5, 2001;
b. No communication from the Senate for a conference on the compromise bill submitted by the BCC
on November 29, 2000;
c. The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor without copies
thereof being furnished the members;
d. The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not signed by the
Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and
rammed for approval by the House;
e. There was no meeting actually conducted by the 2 nd/3rd BCC and that its alleged Report was instantly
made and passed around for the signature of the BCC members;
f. The Senate has no record of the creation of a 2 nd BCC but only of the first one that convened
on November 23, 2000;
g. The Effectivity clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill
submitted by the BCC that convened on November 20, 2000, were couched in terms that comply
with the publication required by the Civil Code and jurisprudence, to wit:
...
However, it was surreptitiously replaced in its final form as it appears in 16, R.A. No. 9006, with
the provision that This Act shall take effect immediately upon its approval;
h. The copy of the compromise bill submitted by the 2nd/3rd BCC that was furnished the members during
its consideration on February 7, 2001, did not have the same 16 as it now appears in RA No. 9006,
but 16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was
made;

i. The alleged BCC Report presented to the House on February 7, 2001, did not contain a detailed,
sufficiently explicit statement of the changes in or amendments to the subject measure; and
j. The disappearance of the Cayetano amendment, which is Section 12 of the compromise bill submitted
by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise
bill of Member Paras as stated in paragraph 7 hereof. The said provision states, thusly:
Sec. 12. Limitation on Elected Officials. Any elected official who runs for
president and vice-president shall be considered ipso facto resigned from his
office upon the filing of the certificate of candidacy. [50]
The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not
persuaded. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are conclusive of its
due enactment. A review of cases[51] reveals the Courts consistent adherence to the rule. The Court finds no reason
to deviate from the salutary rule in this case where the irregularities alleged by the petitioners mostly involved the
internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court
is not the proper forum for the enforcement of these internal rules of Congress, whether House or Senate.
Parliamentary rules are merely procedural and with their observance the courts have no concern. [52] Whatever doubts
there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its
ruling in Arroyo v. De Venecia,[53] viz.:
But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v.
Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to
revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that
Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be
waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will
not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a
particular measure.
The Effectivity Clause
Is Defective
Finally, the Effectivity clause (Section 16) of Rep. Act No. 9006 which provides that it shall take effect
immediately upon its approval, is defective. However, the same does not render the entire law invalid. In Taada v.
Tuvera,[54] this Court laid down the rule:
... the clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication
itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law
effective immediately upon approval, or on any other date without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteenperiod shall be shortened or extended.[55]
Following Article 2 of the Civil Code[56] and the doctrine enunciated in Taada, Rep. Act No. 9006,
notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette or a
newspaper of general circulation.
In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the
courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern
of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds,
the sole function of the court is to determine whether it transcends constitutional limitations or the limits of
legislative power.[57] No such transgression has been shown in this case.

WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs.

SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
ELEAZAR P. QUINTO and
GERINO A. TOLENTINO, JR.,
Petitioners,

versus -

COMMISSION ON
ELECTIONS,

Sandoval-Gutierrez, Carpio,

G.R. No. 189698

Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
Promulgated:

Respondent.
February 22, 2010
x ----------------------------------------------------------------------------------------x
RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections
(COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention,
of this Courts December 1, 2009 Decision (Decision).[1]
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and
Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369,[2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of COMELEC Resolution
No. 8678,[4]mainly on the ground that they violate the equal protection clause of the Constitution and suffer from
overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the
powers, prerogatives and functions of their office notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors
submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the
participation of public appointive officials and members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord differential
treatment to elective and appointive officials, because such differential treatment rests on material and
substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such
reversal.

We find the foregoing arguments meritorious.

I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsiderationin-intervention which were filed after the Court had rendered its December 1, 2009 Decision.
i.

Timeliness of COMELECs Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1, Rule 52 of the same
rules,[6] COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to
move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had
until December 17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was
subsequently filed on December 17, 2009 still within the reglementary period.
ii.

Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not
the intervenors rights may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when
the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in
the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding. [7]
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for
intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached
to the motion and served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in
the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by
the trial court,[8] when the petition for review of the judgment has already been submitted for decision before the
Supreme Court,[9] and even where the assailed order has already become final and executory. [10] In Lim v.
Pacquing,[11] the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid
grave injustice and injury and to settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court[12] after consideration of the appropriate circumstances. [13]We stress again that Rule 19 of the Rules of Court is
a rule of procedure whose object is to make the powers of the court fully and completely available for justice. [14] Its
purpose is not to hinder or delay, but to facilitate and promote the administration of justice. [15]

We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly
intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009
Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the
electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the
public in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May
2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet
resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the
assailed Decision, unless it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in
another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of
the laws of the land.
With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that this case involves the
constitutionality of elections laws for this coming 2010 National Elections, and that there is a need for it to be
allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this
Highest Tribunal as it resolves issues of transcendental importance.[16]
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present
a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked
interest is, in character, too indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following
grounds:
(1) They violate the equal protection clause of the Constitution because of the differential treatment of
persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts:
(a) without distinction as to whether or not they occupy high/influential positions in the government,
and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in
character, or whether they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public
appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of
the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not
unconstitutional, and accordingly reverse our December 1, 2009 Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or position, including active

members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election
Act,[17] which repealed Section 67 of the Omnibus Election Code [18] and rendered ineffective Section 11 of
R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period
corresponding to the positions for which they are running, [19] an elected official is not deemed to have
resigned from his office upon the filing of his certificate of candidacy for the same or any other elected
office or position. In fine, an elected official may run for another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil
service officers and employees from engaging in any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and employees in partisan
political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during
the deliberations of the Constitutional Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote:
"No officer or employee in the civil service shall engage, directly or indirectly, in any partisan
political activity." This is almost the same provision as in the 1973 Constitution. However, we in
the government service have actually experienced how this provision has been violated by the
direct or indirect partisan political activities of many government officials.
So, is the Committee willing to include certain clauses that would make this provision more strict,
and which would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the
matter are more than exhaustive enough to really prevent officers and employees in the public
service from engaging in any form of partisan political activity. But the problem really lies in
implementation because, if the head of a ministry, and even the superior officers of offices and
agencies of government will themselves violate the constitutional injunction against partisan
political activity, then no string of words that we may add to what is now here in this draft will
really implement the constitutional intent against partisan political activity. x x x[20] (italics
supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is presently
reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of
Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office.
xxxx

Section 55. Political Activity. No officer or employee in the Civil Service including members of
the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part
in any election except to vote nor shall he use his official authority or influence to coerce the
political activity of any other person or body. Nothing herein provided shall be understood to
prevent any officer or employee from expressing his views on current political problems or issues,
or from mentioning the names of his candidates for public office whom he supports: Provided,
That public officers and employees holding political offices may take part in political and electoral
activities but it shall be unlawful for them to solicit contributions from their subordinates or
subject them to any of the acts involving subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service
officers and employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an election offense:
xxxx
(i) Intervention of public officers and employees. Any officer or employee in the civil service,
except those holding political offices; any officer, employee, or member of the Armed Forces of
the Philippines, or any police force, special forces, home defense forces, barangay self-defense
units and all other para-military units that now exist or which may hereafter be organized who,
directly or indirectly, intervenes in any election campaign or engages in any partisan political
activity, except to vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil service
officers and employees in partisan political activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil
servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials,
notwithstanding the fact that [t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies
of theGovernment, including government-owned or controlled corporations with original charters.[21] This is because
elected public officials, by the very nature of their office, engage in partisan political activities almost all year round,
even outside of the campaign period.[22] Political partisanship is the inevitable essence of a political office, elective
positions included.[23]
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office whom they
support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,
subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the
phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed.
MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which
was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not
intended as a guarantee to the right to vote but as a qualification of the general prohibition against
taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not

an unconditional right. In other words, the Legislature can always pass a statute which can
withhold from any class the right to vote in an election, if public interest so required. I would only
like to reinstate the qualification by specifying the prohibited acts so that those who may want to
vote but who are likewise prohibited from participating in partisan political campaigns or
electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or employee. The
elimination of the last clause of this provision was precisely intended to protect the members of
the civil service in the sense that they are not being deprived of the freedom of expression in a
political contest. The last phrase or clause might have given the impression that a government
employee or worker has no right whatsoever in an election campaign except to vote, which is not
the case. They are still free to express their views although the intention is not really to allow them
to take part actively in a political campaign.[24]
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the
second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the
Constitution.
i.

Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in
the case at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et
al.[25]
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against
appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected
officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their
respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates
of candidacy.
The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in
view of having the deemed-resigned provisions apply equally to both elected and appointive officials. We held,
however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and
significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection
clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to such officials as against the appointive ones
and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality.

It is not intended to prohibit legislation which is limited either in the object to

which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such class
and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials.
The former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code
of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in
any election except to vote. Under the same provision, elective officials, or officers or employees
holding political offices, are obviously expressly allowed to take part in political and electoral
activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes of officials differently with respect to the
effect on their tenure in the office of the filing of the certificates of candidacy for any position
other than those occupied by them. Again, it is not within the power of the Court to pass upon or
look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials
vis--vis appointive officials, is anchored upon material and significant distinctions and all the
persons belonging under the same classification are similarly treated, the equal protection clause
of the Constitution is, thus, not infringed.[26]
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it
new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really
adherence to precedents, mandates that once a case has been decided one way, then another case involving exactly
the same point at issue should be decided in the same manner. [27] This doctrine is one of policy grounded on the
necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in
his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite
way between another. If a group of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for the same judgment
today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my
breast; it would be an infringement, material and moral, of my rights." Adherence to precedent
must then be the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.[28]
Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by
the case cannot be considered as obiter dictum.[29] This rule applies to all pertinent questions that are presented and
resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any

statement as to the matter on which the decision is predicated. [30] For that reason, a point expressly decided does not
lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground;
or even though, by reason of other points in the case, the result reached might have been the same if the court had
held, on the particular point, otherwise than it did.[31] As we held inVillanueva, Jr. v. Court of Appeals, et al.:[32]
A decision which the case could have turned on is not regarded as obiter dictum merely because,
owing to the disposal of the contention, it was necessary to consider another question, nor can an
additional reason in a decision, brought forward after the case has been disposed of on one ground,
be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of such points can be regarded as
having the status of a dictum, and one point should not be denied authority merely because
another point was more dwelt on and more fully argued and considered, nor does a decision on
one proposition make statements of the court regarding other propositions dicta. [33] (italics
supplied)
ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction.[34] What it simply requires is equality among equals as determined according
to a valid classification.[35] The test developed by jurisprudence here and yonder is that of reasonableness, [36] which
has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third
and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of
appointive officials vis--vis elected officials is not germane to the purpose of the law, because whether one holds an
appointive office or an elective one, the evils sought to be prevented by the measure remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in
the recent past, elected Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs). With the fact that they
both head executive offices, there is no valid justification to treat them differently when both file
their [Certificates of Candidacy] for the elections. Under the present state of our law, the VicePresident, in the example, running this time, let us say, for President, retains his position during
the entire election period and can still use the resources of his office to support his campaign. [38]
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed one step at a time.[39] In
addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to
those included or excluded.[40] Nevertheless, as long as the bounds of reasonable choice are not exceeded, the courts
must defer to the legislative judgment.[41] We may not strike down a law merely because the legislative aim would
have been more fully achieved by expanding the class. [42] Stated differently, the fact that a legislative classification,
by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. [43] There is no constitutional
requirement that regulation must reach each and every class to which it might be applied; [44] that the Legislature
must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law creates a
classification that is palpably arbitrary or capricious. [45] He must refute all possible rational bases for the differing
treatment, whether or not the Legislature cited those bases as reasons for the enactment, [46] such that the

constitutionality of the law must be sustained even if the reasonableness of the classification is fairly debatable.[47] In
the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed
Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the statutes
distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy
standpoint; rather, we must find that there is no reasonably rational reason for the differing
treatment.[48]
In the instant case, is there a rational justification for excluding elected officials from the
operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people.[49] It involves the choice or selection of candidates to public office
by popular vote.[50] Considering that elected officials are put in office by their constituents for a
definite term, it may justifiably be said that they were excluded from the ambit of the deemed
resigned provisions in utmost respect for the mandate of the sovereign will. In other words,
complete deference is accorded to the will of the electorate that they be served by such officials
until the end of the term for which they were elected. In contrast, there is no such expectation
insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is therefore germane
to the purposes of the law. For the law was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the
rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet
equally compelling, interest of deferring to the sovereign will. [51] (emphasis in the original)
In fine, the assailed Decision would have us equalize the playing field by invalidating provisions of law
that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in
which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over
another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the
least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials
(vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring
but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the
authority, under our constitutional system, to balance competing interests and thereafter make policy choices
responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed-resigned
provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such
frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not
arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy
standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted
to, and extensively cited, Mancuso v. Taft.[52] This was a decision of the First Circuit of the United States Court of
Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision.
Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two fundamental freedoms freedom of
expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be subjected to
strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work
force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to
render them unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow
suit.
Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United
States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court
of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFLCIO,et al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the United States Supreme Court was faced with
the issue of whether statutory provisions prohibiting federal[55] and state[56] employees from taking an active part in
political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation
of these provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating
the speech of its employees, the state as employer has interests that differ significantly from those it possesses in
regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of
employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the
employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation
on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining
which positions are to be covered by any statutory restrictions. [57] Therefore, insofar as government employees are
concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the
closeness of fit between the governmental interests and the prohibitions in question.[58]
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have
been that partisan political activities by federal employees must be limited if the Government is to
operate effectively and fairly, elections are to play their proper part in representative government,
and employees themselves are to be sufficiently free from improper influences. The restrictions so
far imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to
interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education, [59] the government has an
interest in regulating the conduct and the speech of its employees that differ(s) significantly from
those it possesses in connection with regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the interests of the (employee), as a citizen,
in commenting upon matters of public concern and the interest of the (government), as an
employer, in promoting the efficiency of the public services it performs through its employees.
Although Congress is free to strike a different balance than it has, if it so chooses, we think the
balance it has so far struck is sustainable by the obviously important interests sought to be served
by the limitations on partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the
Government, or those working for any of its agencies, should administer the law in accordance
with the will of Congress, rather than in accordance with their own or the will of a political party.
They are expected to enforce the law and execute the programs of the Government without bias or
favoritism for or against any political party or group or the members thereof. A major thesis of
the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is
essential that federal employees, for example, not take formal positions in political parties, not
undertake to play substantial roles in partisan political campaigns, and not run for office on

partisan political tickets. Forbidding activities like these will reduce the hazards to fair and
effective government.
There is another consideration in this judgment: it is not only important that the
Government and its employees in fact avoid practicing political justice, but it is also critical that
they appear to the public to be avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees
was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the
conviction that the rapidly expanding Government work force should not be employed to build a
powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938
campaigns convinced Congress that these dangers were sufficiently real that substantial barriers
should be raised against the party in power-or the party out of power, for that matter-using the
thousands or hundreds of thousands of federal employees, paid for at public expense, to man its
political structure and political campaigns.
A related concern, and this remains as important as any other, was to further serve the
goal that employment and advancement in the Government service not depend on political
performance, and at the same time to make sure that Government employees would be free from
pressure and from express or tacit invitation to vote in a certain way or perform political chores
in order to curry favor with their superiors rather than to act out their own beliefs. It may be
urged that prohibitions against coercion are sufficient protection; but for many years the joint
judgment of the Executive and Congress has been that to protect the rights of federal employees
with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one
employee to attempt to influence or coerce another. For example, at the hearings in 1972 on
proposed legislation for liberalizing the prohibition against political activity, the Chairman of the
Civil Service Commission stated that the prohibitions against active participation in partisan
political management and partisan political campaigns constitute the most significant safeguards
against coercion . . .. Perhaps Congress at some time will come to a different view of the realities
of political life and Government service; but that is its current view of the matter, and we are not
now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute
in any event.[60] x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent
with the will of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve valid
and important state interests, particularly with respect to attracting greater numbers of qualified
people by insuring their job security, free from the vicissitudes of the elective process, and by
protecting them from political extortion. Rather, appellants maintain that however permissible,
even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish between conduct that may be
proscribed and conduct that must be permitted. For these and other reasons, appellants assert that
the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or
anyone else.
We have held today that the Hatch Act is not impermissibly vague. [61] We have little doubt that s
818 is similarly not so vague that men of common intelligence must necessarily guess at its

meaning.[62] Whatever other problems there are with s 818, it is all but frivolous to suggest that the
section fails to give adequate warning of what activities it proscribes or fails to set out explicit
standards' for those who must apply it. In the plainest language, it prohibits any state classified
employee from being an officer or member of a partisan political club or a candidate for any paid
public office. It forbids solicitation of contributions for any political organization, candidacy or
other political purpose and taking part in the management or affairs of any political party or in any
political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or
affairs of political parties. But what was said in Letter Carriers, is applicable here: there are
limitations in the English language with respect to being both specific and manageably brief, and
it seems to us that although the prohibitions may not satisfy those intent on finding fault at any
cost, they are set out in terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as
well as unprotected conduct, and must therefore be struck down on its face and held to be
incapable of any constitutional application. We do not believe that the overbreadth doctrine may
appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of standing in the First
Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until
and unless a limiting construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application of the overbreadth
doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court
sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is
an exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from
pure speech toward conduct and that conduct-even if expressive-falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly
worded, may deter protected speech to some unknown extent, there comes a point where that
effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its power
to proscribe. To put the matter another way, particularly where conduct and not merely speech is
involved, we believe that the overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not
substantially overbroad and that whatever overbreadth may exist should be cured through case-bycase analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is
directed, by its terms, at political expression which if engaged in by private persons would plainly
be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate
political activity in an even-handed and neutral manner. As indicted, such statutes have in the past
been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818
regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the
public peace or criminal trespass. This much was established in United Public Workers v.
Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in
Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified
employees from: soliciting contributions for partisan candidates, political parties, or other partisan

political purposes; becoming members of national, state, or local committees of political parties,
or officers or committee members in partisan political clubs, or candidates for any paid public
office; taking part in the management or affairs of any political party's partisan political campaign;
serving as delegates or alternates to caucuses or conventions of political parties; addressing or
taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at
the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of
partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in
caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may be susceptible
of some other improper applications. But, as presently construed, we do not believe that s 818
must be discarded in toto because some persons arguably protected conduct may or may not be
caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated
in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a
reversal of Mancuso, since they pertain to different types of laws and were decided based on a different set of
facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation in
political management or political campaigns. The plaintiffs desired to campaign for candidates for
public office, to encourage and get federal employees to run for state and local offices, to
participate as delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a
provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the
political activities of the States classified civil servants, in much the same manner as the Hatch Act
proscribed partisan political activities of federal employees. Prior to the commencement of the
action, the appellants actively participated in the 1970 reelection campaign of their superior, and
were administratively charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the campaign, for soliciting
money for the campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision.
Kenneth Mancuso, a full time police officer and classified civil service employee of the City of
Cranston, filed as a candidate for nomination as representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision
of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided
based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a
reversal of Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter
Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to
the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home
Rule Charter, which prohibits continuing in the classified service of the city after becoming a
candidate for nomination or election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Acts prohibition against active participation in political management

or political campaigns[63] with respect to certain defined activities in which they desired to engage. The
plaintiffs relevant to this discussion are:
(a) The National Association of Letter Carriers, which alleged that its members were
desirous of, among others, running in local elections for offices such as school board
member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the
office of Borough Councilman in his local community for fear that his participation
in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the
1971 partisan election for the mayor of West Lafayette, Indiana, and that he would
do so except for fear of losing his job by reason of violation of the Hatch Act.
The Hatch Act defines active participation in political management or political campaigns by crossreferring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to
any National, State, county, or municipal office is not permissible. The
prohibition against political activity extends not merely to formal announcement
of candidacy but also to the preliminaries leading to such announcement and to
canvassing or soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive is
immaterial; if an employee acquiesces in the efforts of friends in furtherance of
such candidacy such acquiescence constitutes an infraction of the prohibitions
against political activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.[64]
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of
unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that [n]o
employee in the classified service shall be a candidate for nomination or election to any paid public
office Violation of Section 818 results in dismissal from employment, possible criminal sanctions and
limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By
no
stretch
of
the
imagination
could Mancuso still
be
held
operative,
as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior
court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same
court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch[65] thatMancuso is no
longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in
1975. Pawtuckets Little Hatch Act prohibits city employees from engaging in a broad range of
political activities. Becoming a candidate for any city office is specifically proscribed, [66] the
violation being punished by removal from office or immediate dismissal. The firemen brought an
action against the city officials on the ground that that the provision of the city charter was
unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took
the position that Mancuso had since lost considerable vitality. It observed that the view that
political candidacy was a fundamental interest which could be infringed upon only if less
restrictive alternatives were not available, was a position which was no longer viable, since
the Supreme Court (finding that the governments interest in regulating both the conduct
and speech of its employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means to the same end, deferring to

the judgment of Congress, and applying a balancing test to determine whether limits on
political activity by public employees substantially served government interests which were
important enough to outweigh the employees First Amendment rights. [67]
It must be noted that the Court of Appeals ruled in this manner even though the election
in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats might use their official power to help
political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which
bars a city employee's candidacy in even a nonpartisan city election, is
constitutional. The issue compels us to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick
v. Oklahoma. Both dealt with laws barring civil servants from partisan political
activity. Letter Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as to federal employees.
Broadrick sustained Oklahoma's Little Hatch Act against constitutional attack,
limiting its holding to Oklahoma's construction that the Act barred only activity
in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of
candidacy in nonpartisan elections would not be constitutional. Letter Carriers
and Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court
recognized, is to apply the Courts interest balancing approach to the kind of
nonpartisan election revealed in this record. We believe that the district court
found more residual vigor in our opinion in Mancuso v. Taft than remains after
Letter Carriers. We have particular reference to our view that political
candidacy was a fundamental interest which could be trenched upon only if less
restrictive alternatives were not available. While this approach may still be
viable for citizens who are not government employees, the Court in Letter
Carriers recognized that the government's interest in regulating both the
conduct and speech of its employees differs significantly from its interest in
regulating those of the citizenry in general. Not only was United Public Workers
v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government employees were a
less drastic means to the same end, deferring to the judgment of the Congress.
We cannot be more precise than the Third Circuit in characterizing the Court's
approach as "some sort of 'balancing' process".[68] It appears that the government
may place limits on campaigning by public employees if the limits substantially
serve government interests that are "important" enough to outweigh the
employees' First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the
major governmental interests discussed in Letter Carriers and applied them to
the Pawtucketprovision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of
an efficient government, faithful to the Congress rather than to party. The
district court discounted this interest, reasoning that candidates in a local
election would not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance to broad policy
positions is concerned. But a different kind of possible political intrusion into
efficient administration could be thought to threaten municipal government: not
into broad policy decisions, but into the particulars of administration favoritism
in minute decisions affecting welfare, tax assessments, municipal contracts and

purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter
Carriers identified a second governmental interest in the avoidance of the
appearance of "political justice" as to policy, so there is an equivalent interest in
avoiding the appearance of political preferment in privileges, concessions, and
benefits. The appearance (or reality) of favoritism that the charter's authors
evidently feared is not exorcised by the nonpartisan character of the formal
election process. Where, as here, party support is a key to successful
campaigning, and party rivalry is the norm, the city might reasonably fear that
politically active bureaucrats would use their official power to help political
friends and hurt political foes. This is not to say that the city's interest in visibly
fair and effective administration necessarily justifies a blanket prohibition of all
employee campaigning; if parties are not heavily involved in a campaign, the
danger of favoritism is less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter Carriers was
avoiding the danger of a powerful political machine. The Court had in mind the
large and growing federal bureaucracy and its partisan potential. The district
court felt this was only a minor threat since parties had no control over
nominations. But in fact candidates sought party endorsements, and party
endorsements proved to be highly effective both in determining who would
emerge from the primary election and who would be elected in the final election.
Under the prevailing customs, known party affiliation and support were highly
significant factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work force would give the
incumbent party, and the incumbent workers, an unbreakable grasp on the reins
of power. In municipal elections especially, the small size of the electorate and
the limited powers of local government may inhibit the growth of interest groups
powerful enough to outbalance the weight of a partisan work force. Even when
nonpartisan issues and candidacies are at stake, isolated government employees
may seek to influence voters or their co-workers improperly; but a more real
danger is that a central party structure will mass the scattered powers of
government workers behind a single party platform or slate. Occasional misuse
of the public trust to pursue private political ends is tolerable, especially because
the political views of individual employees may balance each other out. But
party discipline eliminates this diversity and tends to make abuse systematic.
Instead of a handful of employees pressured into advancing their immediate
superior's political ambitions, the entire government work force may be
expected to turn out for many candidates in every election. In Pawtucket, where
parties are a continuing presence in political campaigns, a carefully orchestrated
use of city employees in support of the incumbent party's candidates is possible.
The danger is scarcely lessened by the openness of Pawtucket's nominating
procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was
ensuring that employees achieve advancement on their merits and that they be
free from both coercion and the prospect of favor from political activity. The
district court did not address this factor, but looked only to the possibility of a
civil servant using his position to influence voters, and held this to be no more of
a threat than in the most nonpartisan of elections. But we think that the
possibility of coercion of employees by superiors remains as strong a factor in
municipal elections as it was in Letter Carriers. Once again, it is the systematic
and coordinated exploitation of public servants for political ends that a
legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely nonpartisan
system. Some superiors may be inclined to ride herd on the politics of their
employees even in a nonpartisan context, but without party officials looking

over their shoulders most supervisors will prefer to let employees go their own
ways.
In short, the government may constitutionally restrict its employees'
participation in nominally nonpartisan elections if political parties play a large
role in the campaigns. In the absence of substantial party involvement, on the
other hand, the interests identified by the Letter Carriers Court lose much of
their force. While the employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest that they would always
do so. Even when parties are absent, many employee campaigns might be
thought to endanger at least one strong public interest, an interest that looms
larger in the context of municipal elections than it does in the national elections
considered in Letter Carriers. The city could reasonably fear the prospect of a
subordinate running directly against his superior or running for a position that
confers great power over his superior. An employee of a federal agency who
seeks a Congressional seat poses less of a direct challenge to the command and
discipline of his agency than a fireman or policeman who runs for mayor or city
council. The possibilities of internal discussion, cliques, and political
bargaining, should an employee gather substantial political support, are
considerable. (citations omitted)
The court, however, remanded the case to the district court for further proceedings in
respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad
is not to be taken lightly, much less to be taken in the dark, the court held:
The governing case is Broadrick, which introduced the doctrine of
"substantial" overbreadth in a closely analogous case. Under Broadrick, when
one who challenges a law has engaged in constitutionally unprotected conduct
(rather than unprotected speech) and when the challenged law is aimed at
unprotected conduct, "the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep."
Two major uncertainties attend the doctrine: how to distinguish speech from
conduct, and how to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a
candidate, and they were subject to discipline under a law proscribing a wide
range of activities, including soliciting contributions for political candidates and
becoming a candidate. The Court found that this combination required a
substantial overbreadth approach. The facts of this case are so similar that we
may reach the same result without worrying unduly about the sometimes opaque
distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no
substantial
overbreadth
in
a
statute
restricting
partisan
campaigning. Pawtucket has gone further, banning participation in nonpartisan
campaigns as well. Measuring the substantiality of a statute's overbreadth
apparently requires, inter alia, a rough balancing of the number of valid
applications compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The question is a matter of
degree; it will never be possible to say that a ratio of one invalid to nine valid
applications makes a law substantially overbroad. Still, an overbreadth
challenger has a duty to provide the court with some idea of the number of
potentially invalid applications the statute permits. Often, simply reading the
statute in the light of common experience or litigated cases will suggest a
number of probable invalid applications. But this case is different. Whether the
statute is overbroad depends in large part on the number of elections that are

insulated from party rivalry yet closed to Pawtucket employees. For all the
record shows, every one of the city, state, or federal elections in Pawtucket is
actively contested by political parties. Certainly the record suggests that parties
play a major role even in campaigns that often are entirely nonpartisan in other
cities. School committee candidates, for example, are endorsed by the local
Democratic committee.
The state of the record does not permit us to find overbreadth; indeed
such a step is not to be taken lightly, much less to be taken in the dark. On the
other hand, the entire focus below, in the short period before the election was
held, was on the constitutionality of the statute as applied. Plaintiffs may very
well feel that further efforts are not justified, but they should be afforded the
opportunity to demonstrate that the charter forecloses access to a significant
number of offices, the candidacy for which by municipal employees would not
pose the possible threats to government efficiency and integrity which Letter
Carriers, as we have interpreted it, deems significant. Accordingly, we remand
for consideration of plaintiffs' overbreadth claim. (italics supplied, citations
omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt
that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been
overruled.[69] As it is no longer good law, the ponencias exhortation that [since] the Americans,
from whom we copied the provision in question, had already stricken down a similar measure for
being unconstitutional[,] it is high-time that we, too, should follow suit is misplaced and
unwarranted.[70]
Accordingly, our assailed Decisions submission that the right to run for public office is inextricably linked with two
fundamental freedoms those of expression and association lies on barren ground. American case law has in
fact never recognized a fundamental right to express ones political views through candidacy,[71] as to invoke a
rigorous standard of review.[72] Bart v. Telford[73] pointedly stated that [t]he First Amendment does not in terms
confer a right to run for public office, and this court has held that it does not do so by implication either. Thus, ones
interest in seeking office, by itself, is not entitled to constitutional protection.[74] Moreover, one cannot bring ones
action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one
is advancing the political ideas of a particular set of voters.[75]
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative
of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i)
efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance
of political justice as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that
employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor
from political activity). These are interests that are important enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing[76] and Morial, et al. v.
Judiciary Commission of the State of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run
provisions are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others,[78] under a
classification that is germane to the purposes of the law. These resign-to-run legislations were
not expressed in a general and sweeping provision, and thus did not violate the test of being
germane to the purpose of the law, the second requisite for a valid classification. Directed, as
they were, to particular officials, they were not overly encompassing as to be overbroad.
(emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in
these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the

questioned provisions were found valid precisely because the Court deferred to legislative judgment and found
that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the
equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain
why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States
Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain offices
automatically resign their positions if they become candidates for any other elected office, unless
the unexpired portion of the current term is one year or less. The burdens that 65 imposes on
candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve
essentially the same state interests. The District Court found 65 deficient, however, not because of
the nature or extent of the provision's restriction on candidacy, but because of the manner in which
the offices are classified. According to the District Court, the classification system cannot survive
equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public
officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65
survives a challenge under the Equal Protection Clause unless appellees can show that there is no
rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more
vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in
1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms
of those offices enumerated in the provision from two to four years. The provision also staggered
the terms of other offices so that at least some county and local offices would be contested at each
election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar
automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home
rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of
extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral
reforms of 1958. That the State did not go further in applying the automatic resignation provision
to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is
not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until it places similar restrictions on
other officeholders. The provision's language and its history belie any notion that 65 serves the
invidious purpose of denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that there is no blanket approval of
restrictions on the right of public employees to become candidates for public office out of context. A correct reading
of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific
prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably
entitled to the protection of the first and fourteenth amendments. Nothing in today's decision
should be taken to imply that public employees may be prohibited from expressing their private
views on controversial topics in a manner that does not interfere with the proper performance of
their public duties. In today's decision, there is no blanket approval of restrictions on the right of
public employees to become candidates for public office. Nor do we approve any general
restrictions on the political and civil rights of judges in particular. Our holding is necessarily
narrowed by the methodology employed to reach it. A requirement that a state judge resign his
office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation
to the achievement of the state's interest in preventing the actuality or appearance of judicial

impropriety. Such a requirement offends neither the first amendment's guarantees of free
expression and association nor the fourteenth amendment's guarantee of equal protection of the
laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated.
And a State can hardly be faulted for attempting to limit the positions upon which such restrictions
are placed. (citations omitted)

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in
two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due
regard for the type of position being held by the employee seeking an elective post and the degree of
influence that may be attendant thereto;[79] and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions
without due regard for the type of office being sought, whether it be partisan or nonpartisan in
character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of

Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply
indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held
by the employee running for elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when the
incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government
posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a
powerful political machine that has amassed the scattered powers of government workers so as to give itself and its
incumbent workers an unbreakable grasp on the reins of power. [80] As elucidated in our prior exposition:[81]
Attempts by government employees to wield influence over others or to make use of their
respective positions (apparently) to promote their own candidacy may seem tolerable even
innocuous particularly when viewed in isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and
dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a
veiled effort on the part of an emerging central party structure to advance its own agenda through
a carefully orchestrated use of [appointive and/or elective] officials coming from various levels of
the bureaucracy.
[T]he avoidance of such a politically active public work force which could give an
emerging political machine an unbreakable grasp on the reins of power is reason enough to impose

a restriction on the candidacies of all appointive public officials without further distinction as to
the type of positions being held by such employees or the degree of influence that may be
attendant thereto. (citations omitted)

ii.
Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad because they are
made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of
elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal
or barangaylevel.
This erroneous ruling is premised on the assumption that the concerns of a truly partisan office and the
temptations it fosters are sufficiently different from those involved in an office removed from regular party politics
[so as] to warrant distinctive treatment,[82] so that restrictions on candidacy akin to those imposed by the challenged
provisions can validly apply only to situations in which the elective office sought is partisan in character. To the
extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the
challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged
overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set
forth therein refer to the filing of certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010 National and Local
Elections.[83] Obviously, these rules and guidelines, including the restriction in Section 4(a) of
Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local
Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying
for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the
overbreadth challenge leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus
Election Code, in conjunction with other related laws on the matter, will confirm that these
provisions are likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay offices,
since these are the only elections in this country which involve nonpartisan public offices.[84]
In this regard, it is well to note that from as far back as the enactment of the Omnibus
Election Code in 1985, Congress has intended that these nonpartisan barangay elections be
governed by special rules, including a separate rule on deemed resignations which is found in
Section 39 of the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No person shall be elected punong
barangay or kagawad ng sangguniang barangay unless he files a sworn
certificate of candidacy in triplicate on any day from the commencement of the
election period but not later than the day before the beginning of the campaign
period in a form to be prescribed by the Commission. The candidate shall state
the barangay office for which he is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official or
employee, or those in the civil or military service, including those in

government-owned or-controlled corporations, shall be considered

automatically resigned upon the filing of certificate of candidacy for a barangay
office.
Since barangay elections are governed by a separate deemed resignation rule, under the
present state of law, there would be no occasion to apply the restriction on candidacy found in
Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA
9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised
against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA
9369 must also fail. [85]
In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election
Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for
nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior
has not received judicial imprimatur, because the general proposition of the relevant US cases on
the matter is simply that the government has an interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses in connection with regulation of the
speech of the citizenry in general.[86]
Moreover, in order to have a statute declared as unconstitutional or void on its face for
being overly broad, particularly where, as in this case, conduct and not pure speech is involved,
the overbreadth must not only be real, but substantial as well, judged in relation to the statutes
plainly legitimate sweep.[87]
In operational terms, measuring the substantiality of a statutes overbreadth would entail,
among other things, a rough balancing of the number of valid applications compared to the
number of potentially invalid applications.[88] In this regard, some sensitivity to reality is needed;
an invalid application that is far-fetched does not deserve as much weight as one that is
probable.[89] The question is a matter of degree.[90] Thus, assuming for the sake of argument that
the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make
this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently
mounted must demonstrate or provide this Court with some idea of the number of potentially
invalid elections (i.e. the number of elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in all probability result from the
enforcement of the statute.[91]
The state of the record, however, does not permit us to find overbreadth. Borrowing from
the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken
in the dark,[92] especially since an overbreadth finding in this case would effectively prohibit the
State from enforcing an otherwise valid measure against conduct that is admittedly within its
power to proscribe.[93]

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of
the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the
right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as
a last resort.[94]
In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the
court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the
possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some
unprotected speech or conduct to go unpunished.[95] Facial overbreadth has likewise not been invoked where a
limiting construction could be placed on the challenged statute, and where there are readily apparent constructions
that would cure, or at least substantially reduce, the alleged overbreadth of the statute. [96]

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in
office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected
candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold
predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against
conduct that is, and has for more than 100 years been, unquestionably within its power and interest to
proscribe.[97] Instead, the more prudent approach would be to deal with these conceivably impermissible applications
through case-by-case adjudication rather than through a total invalidation of the statute itself. [98]
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their
Certificates of Candidacy without relinquishing their posts.[99] Several COMELEC election officers had likewise
filed their Certificates of Candidacy in their respective provinces. [100] Even the Secretary of Justice had filed her
certificate of substitution for representative of the first district of Quezon province last December 14, 2009 [101] even
as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, [102] who, in turn,
act as Vice-Chairmen of the respective Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional
Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral
playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369,
which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions
for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition;
and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No.
8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of
the Omnibus Election Code.
SO ORDERED.

REYNATO S. PUNO
Chief Justice
G.R. No. 78623 : December 17, 1990.]
192 SCRA 326
DR. OFELIA P. TRISTE, Petitioner, vs. LEYTE STATE COLLEGE BOARD OF TRUSTEES, namely: Hon.
Lourdes R. Quisumbing, Secretary of the Department of Education, Culture and Sports and Chairman of the
Board and/or Dr. Minda C. Sutaria as the authorized representative; Dr. Purificacion M. Flores, President of
the Leyte State College and Vice-Chairman of the Board; Director Venancio Baclagon, National Economic
and Development Authority, Regional Office No. VIII and Member of the Board; HON. SEDFREY A.
ORDOEZ, Secretary of Justice and Chairman of the Review Committee under Executive Order No. 17; and
DR. CRES V. CHAN-GONZAGA, Respondents.

DECISION

FERNAN, J.:

The instant petition for Certiorari focuses on the vice-presidency of the Leyte State College in Tacloban City. It
seeks to annul and set aside the decision of the Board of Trustees of said College ousting and replacing herein
petitioner with private respondent as Vice-President thereof, as well as the resolution of the Review Committee
under Executive Order No. 17 dismissing petitioner's appeal thereto.
The Leyte State College, formerly the Leyte Normal School, one of the eight normal schools established in the
Philippines as a teacher-training institution serving Eastern Visayas, Masbate and Surigao, became a chartered state
college by virtue of Presidential Decree No. 944 dated June 14, 1976 (72 O.G. 7207). Section 4 of the decree
provides that "the governance and administration of each College and the exercise of its corporate powers shall be
vested exclusively in the Board of Trustees and in the President of the College insofar as authorized by said Board".
In addition to its general powers of administration, Section 6 provides that the Board shall have the power and duty:
"(c) To appoint, on recommendation of the President of each College, a Vice-President for Academic Affairs and
Development with a position next in rank to the President of the College who shall assist in the administration and
supervision of the College and who shall automatically assume the presidency of the College in an acting capacity,
with full powers and duties, in the absence of the President or when the office of the president is vacant." (Italics
supplied)
Under Section 9 of the same decree, the vice-president for academic affairs shall also be a member of the College
Council which is vested with the powers to prescribe the curricula and the rules of discipline subject to the approval
of the Board of Trustees; to fix the requirements for admission to the college as well as for graduation and the
receiving of a degree; to recommend students or others to be the recipients of degrees or honors; and, through its
president or committee, to have disciplinary control over the students within the prescribed rules of discipline
approved by the Board of Trustees.: nad
Two years later or on June 10, 1978, Presidential Decree No. 1437 (74 O.G. 5733-LLLLL Supp.) was promulgated
to define the composition and powers of the governing boards of chartered state universities and colleges and the
term of office of the presidents thereof. Said governing boards shall be composed of the Secretary of Education and
Culture as chairman, the president of the university or college as vice-chairman, and a representative of the National
Economic and Development Authority (NEDA) and two (2) prominent citizens as members.
One of the governing board's specific powers as laid out in Section 3 of P.D. 1437 is the following:
"f. To confirm appointments of vice-presidents, deans, directors, registrars, heads of departments, professors, and
other officials and employees of the university or college made by the president, to fix their compensation, hours of
service, and such other duties and conditions as the governing boards may promulgate, in accordance with the
provisions of existing laws; to remove them for cause after investigation and hearing." (Emphasis supplied)
Under the foregoing legal milieu, on February 3, 1984, the Leyte State College Board of Trustees (hereinafter
referred to as the Board) took up the matter of the designation of herein petitioner as vice-president of the college
with a basic salary of P39,288 plus representation and transportation allowances. It passed Resolution No. 53
"confirming the designation of Professor Ofelia TRISTE as vice-president of LSC to include allowances normally
extended to the office of vice-president subject to the usual auditing and accounting regulations." 1 Accordingly,
the acting chairman of the Board issued the following document:
"Republic of the Philippines
MINISTRY OF EDUCATION CULTURE AND SPORTS
Metro Manila
February 3, 1984
KNOW ALL MEN BY THESE PRESENTS:
Pursuant to Section 6, paragraph "C" of PD 944 known as the LSC Charter, DR. OFELIA P. TRISTE is hereby
designated/appointed Vice-President for Academic Affairs and Development of the Leyte State College, Tacloban
City, Philippines.
The Board of Trustees Leyte
State College
Tacloban City

By: (SGD.) VEDASTO G. SUAREZ

Acting Chairman" 2
As petitioner was then holding an appointment of Professor 6, the president of the college sought clarification from
the Minister of the Budget on the total compensation of the vice-president. The then Minister of Budget, Manuel S.
Alba, in a letter dated June 22, 1984, opined that "(p)ursuant to Sections 4.1 and 4.4 of NCC No. 12-B, a VicePresident may be designated in lieu of a permanent plantilla position, provided that the designee's basic salary plus
honorarium shall not exceed the salary prescribed for a permanently appointed Vice-President, as specified by NCC
No. 12." Hence, the total compensation of petitioner should consist of the basic salary of P41,292 and an honorarium
of P4,548 or the total amount of P45,840. In addition to that amount, the vice-president was authorized to receive
commutable transportation and representation allowances of P475 per month subject to conditions stated therein. 3
In October, 1984, the Office of Compensation and Position Classification furnished the then President of the college,
Magdalena S. Ramo, with an advance copy of the personnel services itemization of the college which would be the
basis for the preparation of its plantilla of personnel for calendar year 1984. 4 The position of vice-president does
not appear in said itemization. 5 However, per the college's plantilla of personnel for 1984, petitioner's position was
designated and classified as "Professor 6 (Vice-Pres.)" receiving an actual salary of P54,600 as of June 30, 1984 but
which salary was adjusted to P55,644 effective July 1, 1984. 6
For more than two years, petitioner discharged her duties and functions as vice-president of the college.
In February 1986, there was a total revamp in the composition of the Board of Trustees of the Leyte State College.
Among others, Dr. Purificacion M. Flores was designated officer-in-charge and later appointed as the new College
President vice Magdalena S. Remo who retired as president of the college on May 1, 1986.
Anticipating moves to replace her as vice-president, on July 18, 1986, petitioner submitted to the Board of Trustees
a position paper ** asserting that the Board could not appoint a vice-president because the position was not vacant,
the vice-president's term was not co-terminous with that of the recommending president who had retired, and the
incumbent was not replaceable at the pleasure of the Board. In fact, she stated therein that she is qualified for the
college presidency. 7
Petitioner's apprehensions were proved right by later developments. She was not named to any of the committees
formed by Dr. Flores when the latter became the officer-in-charge of the office of the president. 8 On August 21,
1986, petitioner received a letter from President Flores assigning her the job of director of the college's research
program. 9 A week later, petitioner received another letter from President Flores. It states:
"August 29, 1986
Dr. Ofelia P. Triste
Leyte State College
Tacloban City
Dear Dr. TRISTE:
This is to inform you that Resolution No. 42, s. 1986 was approved by the Board of Trustees of the College at its
Board Meeting last August 19, 1986 at MECS, Manila and confirmed August 27, 1986, to wit:
RES. NO. 42, s. 1986
APPROVING THE DESIGNATION OF DR. CRES GONZAGA AS VICE-PRESIDENT OF THE LEYTE STATE
COLLEGE EFFECTIVE AUGUST 19, 1986.
APPROVED
This information is intended to clarify actions taken by this office on designations.
Very truly yours,
(SGD.)
PURIFICACION M. FLORES
President" 10

Alleging that the appointment of Dr. Crescencia (Cres) V. Chan-Gonzaga to the position of vice-president in effect
eased her out of said position, petitioner filed before the Board a petition for reconsideration. She contended that her
constitutional and legal rights to security of tenure had been violated. 11 In response thereto, the Board Secretary
informed petitioner's counsel through a letter dated October 29, 1986 that her petition was "noted and discussed" by
the Board but that the members present at the meeting, namely, Dr. Minda Sutaria, Dr. Flores and Director Venancio
Baclagon, arrived at the consensus that the position of vice-president being "honorific," the incumbent president of
the college had the prerogative to recommend for the vice-presidency the nominee of the executive council. The
letter added that the position being "considered co-terminous with that of the President of the college," pursuant to
Executive Order No. 17, petitioner's services as vice-president were in effect terminated with the Board's approval of
the appointment of Dr. Gonzaga to said position. 12
From November 26, 1986 to January 7, 1987, petitioner's counsel wrote three letters to the secretary of the Board
and a letter to President Flores herself, all requesting for official copies of the board resolution terminating the
services of petitioner as college vice-president, the board resolution appointing Dr. Gonzaga as vice-president, and
the board resolution or decision denying petitioner's petition for reconsideration, for the purpose of filing an appeal
to the Minister of Justice. 13 Said letter-requests were unheeded.:-cralaw
On January 12, 1987, petitioner interposed an appeal despite non-receipt of the requested documents, to the Review
Committee of the Ministry of Justice which was organized to implement Executive Order No. 17 prescribing rules
and regulations for the implementation of Section 2, Article III of the Freedom Constitution. She alleged therein that
since her ouster as vice-president, she had been demoted to the position of Director of Research and that the 20%
salary increase granted to all academic personnel of government schools was not given to her because under the
plantilla approved by the Office of Budget and Management, her salary was reduced by one step since she was no
longer the college vice-president. She argued that she was terminated and stripped of her rank and status without
legal cause and due process; that the Board's claim that the position of vice-president is "honorific" is not supported
by law; that said position is not co-terminous with the position of president not only because the charter is silent on
the matter but also because the charter provides that a vice-president automatically assumes the presidency when it
is vacant; and that the Board may not designate or appoint anyone to the position of vice-president as the same was
not vacant.
The therein respondent Board not having filed any responsive pleading to the brief filed by petitioner before the
Review Committee, she filed three successive motions for judgment on the pleadings. It turned out, however, that on
January 23, 1987, the Review Committee *** had issued a resolution on petitioner's appeal but a copy of the same
was furnished her through the mail only on March 31, 1987. 14
In said resolution, the Review Committee dismissed petitioner's petition on the ground that it was filed beyond the
10-day period provided for in Section 6 of Executive Order No. 17. 15
After her requests for certified copies of the designation of Dr. Gonzaga as vice-president and the board resolution
denying her petition for reconsideration remained unacted upon, Dr. Ofelia P. TRISTE filed the instant petition
for Certiorari.
A preliminary point to consider is the propriety of the instant petition. Private respondent Gonzaga asserts that
petitioner, not having appealed to the president, had not exhausted all administrative remedies available to her
before she filed the instant judicial remedy.
As we earlier held, exhaustion of administrative remedies is not an iron-clad rule. It is not necessary when, from the
facts of the case, petitioner has to look to the courts for speedy relief; when the question presented is "purely a legal
one," the controverted act is "patently illegal" and "nothing of an administrative nature is to be or can be done;" and
when petitioner was denied due process. 16 Each of these exceptions may exempt the petitioner from the rule on
exhaustion of administrative remedies before filing a court action. Considering that all these exceptions are present
in this case, petitioner may avail herself of the instant remedy.:-cralaw
Although the petition is captioned "petition for review on Certiorari" 17 thereby creating the impression that the
same was filed under Rule 45 of the Rules of Court, we shall consider it as one for Certiorari under Rule 65 it
having been alleged that the respondents have abused their discretion in their questioned actions. 18
The resolution of the issue on whether petitioner was illegally ousted from her position as vice-president of the
Leyte State College hinges on the determination of her status as such official. Private respondent Dr. Gonzaga and
public respondent Dr. Flores **** contend that petitioner was merely "designated" and not "appointed" to the

college vice-presidency. They aver that petitioner's "designation" to said position was "purely an internal
arrangement which does not require the approval or confirmation by the Civil Service Commission." 19 They
maintain that petitioner's term of office being co-terminous with that of the retired college president, petitioner may
not complain that she was illegally dismissed from the vice-presidency. On the other hand, petitioner asserts that she
was the duly appointed vice-president of the college and hence, her right to security of tenure may not be
unceremoniously abridged.
In Borromeo v. Mariano, 20 this Court, through Justice Malcolm, noted that "(a)ll authorities unite in saying that the
term 'appoint' is well-known and whether regarded in its legal or in its ordinary acceptation, is applied to the
nomination or designation of an individual." We defined "appointment" in Aparri v. Court of Appeals 21 as the "act
of designation by the executive officer, board or body, to whom that power has been delegated, of the individual
who is to exercise the functions of a given office." On the other hand, there is jurisprudence to the effect that the
word "designate," when used by the appointing power in making an appointment to office, is equivalent to the word
"appoint." 22
Common usage, however, oftentimes puts a distinction between the terms "appointment" and designation". Perhaps,
the reason for this is that the word "appointment" connotes permanency while "designation" implies temporariness.
Thus, to "designate" a public officer to another position may mean to vest him with additional duties while he
performs the functions of his permanent office. Or, in some cases, a public officer may be "designated" to a position
in an acting capacity as when an Undersecretary is designated to discharge the functions of a Secretary pending the
appointment of a permanent Secretary.
The provisions of Presidential Decrees Nos. 944 and 1437, specifically the aforequoted sections, contemplate of a
duly appointed vice-president by the Board of Trustees, who would be a working vice-president with full powers
and duties and whose compensation, hours of service and other duties and conditions of employment should be set
by said Board.
Thus, P.D. 1437 specifically provides among others, the following:
"Section 3 . . . the governing board shall have the following specific powers and duties:
x x x
f. to confirm the appointments of vice-presidents, . . . in accordance with the provisions of existing laws; to remove
them for cause after investigation and hearing."
It appears that these provisions of law notwithstanding, it was not until February 3, 1984 that a Vice-President for
Leyte State College was named with the designation of herein petitioner to said position. The mode of authorization
was by "designation" inasmuch as the position of Vice-President did not appear in the College's Personnel Services
Itemization for the year 1984. 23 This omission was, however, corrected in the Plantilla of Personnel and Salary
Adjustment Form of the Leyte State College for the same calendar year 1984, which listed as Item No. 2-1 the
position of "Professor 6 (Vice-President)." Herein petitioner was listed as the incumbent with an actual salary as of
June 30, 1984 of P45,600.00 per annum and an adjusted salary effective July 1, 1984 per NCC #33 of P55,644.00
per annum. It is to be noted that the College Plantilla carried other Professor 6 items, i.e. Items Nos. 2-2, 2-4 and 25, with an actual salary of P43,392.00 per annum as of June 30, 1984 and an adjusted salary of P52,944.00 as of July
1, 1984. 24
Thereafter, on December 27, 1985, herein petitioner was extended an appointment as "Professor 6" . . . "with
compensation at the rate of FIFTY FIVE THOUSAND SIX HUNDRED FORTY FOUR (55,644) ONLY pesos per
annum effective July 01, 1984." The position to be filled was listed as "Old Item No. 2-1 Page 1 Approp. Act 230
Page CY 1983, New Item No. 2-1 Page 1 Approp. Act (illegible) CY 1984," which is equivalent to the item
designated as "Professor 6 (Vice-President)" in the Plantilla of Personnel for 1984. Said appointment was issued "By
authority of the Board of Trustees" and approved by the Civil Service Commission as permanent. 25
From the foregoing, it becomes clear that while initially petitioner was discharging the powers and functions of
Vice-President upon a designation made on February 3, 1984, by July 1 of the same year, she was doing so by virtue
of an appointment. For while her appointment paper mentioned only "Professor 6" as the position to which she was
being appointed, the clear intent to appoint her "Professor 6 (Vice-President)," as distinguished from the other
Professor 6 items is manifest from the rate of compensation and Item Number specifically given in the appointment
paper. Moreover, there appears no reason why she should be given another appointment to the position of Professor
6 if the intention was for her to remain merely as Professor 6. The only plausible explanation is that it was an

appointment to a new item of Vice-President. And as adverted to earlier, said appointment was approved by the
Civil Service Commission as permanent.- nad
Although under Section 8 of P.D. 1437, the term of a state college president is six (6) years, the same law is silent as
to that of the vice-president. Such silence, however, should not be interpreted to mean that the law intends to give
the vice-president the same term as that of a president. On the contrary, there are indications in the decrees
themselves that the vice-president is a career official whose term of office may outlast that of the president. Thus,
under Section 6(c) of P.D. 944, the vice-president is next in ranks to the president. He or she shall assist the
president in the administration and supervision of the college. He or she shall "assume the presidency of the College
in an acting capacity, with full powers and duties in the absence or when the office of the president is vacant."
Whoever is holding the position of vice-president shall remain as such until, under Section 3(f) of P.D. 1437 abovequoted, the Board finds a reason or reasons to remove him "for cause after investigation and hearing."
The contention of respondents Gonzaga and Flores that petitioner was not a permanently appointed vice-president
since she was merely receiving an honorarium for the job, is likewise without merit. Under the same Section 3(f) of
P.D. 1437, the Board has the power to fix the compensation of the vice-president. Accordingly, during its meeting
on February 3, 1984, the Board set petitioner's basic salary as vice-president at P39,288 plus representation and
transportation allowances. However, since petitioner was then holding an appointment as Professor 6, the then
college president sought the aforestated opinion of the Minister of Budget granting petitioner an honorarium of
P4,548. Such inquiry, it must be noted, was done in connection with Resolution No. 5, s. 1984, or while petitioner
was discharging the functions of Vice-President upon a designation. In contrast, her compensation as Professor 6
(Vice-President) was specifically stated in her appointment paper. The allegation of private respondents that
petitioner was receiving only an honorarium and not a regular salary as Vice-President is therefore true only for the
period February 3 to June 30, 1984. Thereafter, by virtue of her appointment, petitioner began receiving a
compensation of P55,644.00 per annum as Professor 6 (Vice-President).
Mechem states that "(l)ike the requirement of an oath, the fact of the payment of a salary and/or fees may aid in
determining the nature of a position, but it is not conclusive, for while a salary or fees are usually annexed to the
office, it is not necessarily so. As in the case of the oath, the salary or fees are mere incidents and form no part of the
office. Where a salary or fees are annexed, the office is often said to be coupled with an interest; where neither is
provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good." 26
In the case at bar, petitioner having been given the compensation attached to the Item Professor 6 (Vice-President)
as distinguished from the other Professor 6 items which carried a lower salary, we hold that her appointment dated
December 27, 1985, but retroactive to July 1, 1984 was in truth and in fact to the position of Vice-President, rather
than to the position of Professor 6.
This case should be distinguished from Laxamana v. Borlaza 27 wherein we held that petitioner was legally
removed because she was merely designated as Director of Publications and not by permanent appointment since
there was no position in the college plantilla to which a permanent appointment could be made. In said case, there
was no statutory basis for the inclusion of the position of Director of Publications in the plantilla of the college as it
was merely created by the Board. In the instant case, the position of vice-president is based on a presidential decree
which has the force and effect of law. But because said position was omitted in the personnel services itemization,
the college could do no more than classify petitioner's position as "Professor 6 (Vice-Pres.)"
The nature of petitioner's appointment having been established, we now consider the legality of her replacement as
vice-president of the Leyte State College.:-cralaw
Executive Order No. 17 was issued by the President on May 28, 1986 "to obviate unnecessary anxiety and
demoralization among the deserving officials and employees, particularly in the career civil service" (82 O.G. 24232424). Section 1 thereof provides that separation or replacement of officers and employees shall be made "only for
justifiable reasons". For its purposes, a state college is considered a ministry. Pertinent provisions of the Order state:
"Sec. 2. The Ministry Head concerned, on the basis of such review and assessment, shall determine who shall be
separated from the service. Thereafter, he shall issue to the official or employee concerned a notice of separation
which shall indicate therein the reason/s or ground/s for such separation and the fact that the separated official or
employee has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall
be effective upon receipt of such notice, either personally by the official or employee concerned or on his behalf by
a person of sufficient discretion.

"SEC. 3. The following shall be the grounds for separation/replacement of personnel:

1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the
Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service." (Emphasis supplied)
Petitioner learned of her removal as vice-president when it was already a fait accompli. Hence, all she could do
under the circumstances was to petition for the reconsideration of the Board resolution designating respondent
Gonzaga as her replacement and at the same time asserting her constitutional right to security of tenure.
The Board's "noting" of her petition is not a valid exercise of its power. 28 Although the Board Secretary's letter
stating that the petition for reconsideration was noted and discussed by the Board, the latter's reason for replacing
petitioner, to wit, the position of vice-president is "honorific" and co-terminous with that of the college president is
not within the purview of Section 3 aforequoted.- nad
Furthermore, respondent Flores and the Board had not complied with the procedure set forth in Section 2 of
Executive Order No. 17. They did not serve the notice of separation specified therein. In fact, the cavalier manner by
which petitioner was dislodged from the vice-presidency was matched by the college officials' refusal to furnish
petitioner with copies of the documents pertinent to her appeal. Even if respondent Gonzaga's unsubstantial
allegations on petitioner's association with the Romualdezes of Leyte 29 were true, certainly, it is not within the
spirit of Executive Order No. 17 to brush aside its due process requirements just to implement its ultimate purpose
which is to rid the government of misfits.
On top of these, the review committee seems to have been too technical in treating petitioner's appeal. Its denial of
petitioner's plea for reconsideration on the ground that the 10-day period specified in Section 6 of said order had
lapsed is tantamount to abuse of discretion it appearing that said period had not commenced to run. We agree with
the Solicitor General that the letters embodying the resolutions replacing petitioner as vice-president, do not, in legal
contemplation, constitute the notice of separation from which an appeal could be made. 30 The existence of said
resolutions should have been established by official or certified true copies but unfortunately, respondent Flores
herself and the Board secretary failed to heed petitioner's requests for them.
WHEREFORE, the petition for Certiorari is GRANTED and the IMMEDIATE REINSTATEMENT of petitioner
with backwages to the position of vice-president of the Leyte State College is hereby ordered. No costs.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.

G.R. No. 114795. July 17, 1996]

LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF APPEALS, SALVADOR

EMPEYNADO and CLAUDIO CONCEPCION, respondents.
RESOLUTION
FRANCISCO, J.:

Questioned in this petition for review is the decision[1] of the Court of Appeals[2] (CA), as well as its resolution,
which affirmed the decision of the Regional Trial Court[3] (RTC) of Zamboanga del Norte in dismissing a petition
for mandamus against a Provincial Election Supervisor and an incumbent Election Registrar.
The undisputed facts are as follows:
Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27,
1986. She was to replace respondent Election Registrar Claudio Concepcion, who, in turn, was transferred to Liloy,
Zamboanga del Norte.[4] Correspondingly approved by the Civil Service Commission, [5] both appointments were to
take effect upon assumption of office. Concepcion, however, refused to transfer post as he did not request for
it.[6] Garces, on the other hand, was directed by the Office of Assistant Director for Operations to assume the Gutalac
post.[7] But she was not able to do so because of a Memorandum issued by respondent Provincial Election
Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant. [8]
On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of
the Gutalac post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department,
with an enclosed check to cover for the expenses on construction of polling booths. It was addressed Mrs. Lucita
Garces E.R. Gutalac, Zamboanga del Norte which Garces interpreted to mean as superseding the deferment
order.[9] Meanwhile, since respondent Concepcion continued occupying the Gutalac office, the COMELEC en
banc cancelled his appointment to Liloy.[10]
On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and
mandatory injunction and damages against Empeynado[11] and Concepcion, among others. Meantime, the
COMELEC en banc through a Resolution dated June 3, 1988, resolved to recognize respondent Concepcion as the
Election Registrar of Gutalac,[12] and ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy
be cancelled.[13] In view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that
the same was rendered moot and academic by the said COMELEC Resolution, and that the case is cognizable only
by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition for
mandamus on two grounds, viz., (1) that quo warranto is the proper remedy,[14] and (2) that the cases or matters
referred under the constitution pertain only to those involving the conduct of elections. On appeal, respondent CA
affirmed the RTCs dismissal of the case. Hence, this petition.
The issues raised are purely legal. First, is petitioners action for mandamus proper? And, second, is this case
cognizable by the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated
at the time of her appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III
of the Provisional Constitution.[15] On the contrary, Concepcion posits that he did not vacate his Gutalac post as he
did not accept the transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of
their successors, if such is made within a period of one year from February 25, 1986. (Italics supplied)
The above organic provision did not require any cause for removal of an appointive official under the 1973
Constitution.[16] The transition period from the old to the new Constitution envisioned an automatic
vacancy;[17] hence the government is not hard put to prove anything plainly and simply because the Constitution
allows it.[18] Mere appointment and qualification of the successor removes an incumbent from his post. Nevertheless,
the government in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued
on May 28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed
prior to the issuance of Concepcions transfer order, enumerates five grounds for separation or replacement of
elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution, to wit:
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the
Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service.
Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was
transferred from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior
appointment.[19] If the transfer was made without the consent of the official concerned, it is tantamount to removal
without valid cause[20]contrary to the fundamental guarantee on non-removal except for cause.[21] Concepcions
transfer thus becomes legally infirm and without effect for he was not validly terminated. His appointment to the
Liloy post, in fact, was incomplete because he did not accept it. Acceptance, it must be emphasized, is indispensable
to complete an appointment.[22] Corollarily, Concepcions post in Gutalac never became vacant. It is a basic precept
in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be
appointed to an office which is not vacant.[23] There can be no appointment to a non-vacant position. The incumbent
must first be legally removed, or his appointment validly terminated before one could be validly installed to succeed
him. Further, Garces appointment was ordered to be deferred by the COMELEC. The deferment order, we note, was
not unequivocably lifted. Worse, her appointment to Gutalac was even cancelled by the COMELEC en banc.
These factors negate Garces claim for a well-defined, clear, certain legal right to the Gutalac post. On the
contrary, her right to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent
court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioners right is
founded clearly in law and not when it is doubtful. [24] It will not issue to give him something to which he is not
clearly and conclusively entitled.[25] Considering that Concepcion continuously occupies the disputed position and
exercises the corresponding functions therefore, the proper remedy should have been quo warranto and not
mandamus.[26] Quo warranto tests the title to ones office claimed by another and has as its object the ouster of the
holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles.[27]
Garces heavy reliance with the 1964 Tulawie[28] case is misplaced for material and different factual
considerations. Unlike in this case, the disputed office of Assistant Provincial Agriculturist in the case of Tulawie is
clearly vacant and petitioner Tulawies appointment was confirmed by the higher authorities making his claim to the
disputed position clear and certain.Tulawies petition for mandamus, moreover, was against the Provincial
Agriculturist who never claimed title to the contested office. In this case, there was no vacancy in the Gutalac post
and petitioners appointment to which she could base her claim was revoked making her claim uncertain.
Coming now to the second issue.
The jurisdiction of the RTC was challenged by respondent Empeynado [29] contending that this is a case or
matter cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution
cancelling the appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only
on certiorari before the Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en
banc COMELEC resolution contrary to Sec. 7, Art. IX-A.
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:
Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by
the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of
each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the
COMELECs resolution that triggered this Controversy. The case or matter referred to by the constitution must be
something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. The settled rule is
that decision, rulings, order of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7

Art. IX-A are those that relate to the COMELECs exercise of its adjudicatory or quasi-judicial
powers[30] involving elective regional, provincial and city officials.[31] In this case, what is being assailed is the
COMELECs choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the
operational set-up of an agency.[32] The controversy involves an appointive, not an elective, official. Hardly can this
matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court
with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-judicial functions.[33]
WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the
filing of the proper action with the appropriate body.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.
[G.R. No. 30188. October 2, 1928.]
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE
ELUM,Petitioners, v. NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros,
ALFREDO B. CACNIO, as Provincial Fiscal of Oriental Negros, and JUAN GADIANI,Respondents.
Abad Santos, Camus & Delgado and Teopisto Guingona, for Petitioners.
Araneta & Zaragoza for Respondents.
The respondent Judge in his own behalf.
SYLLABUS
1. COURTS; JURISDICTION; PROHIBITION. A writ of prohibition to a judge of an inferior court will only lie
in cases where he acted without or in excess of his jurisdiction.
2. ID.; ID. A mere "understanding" as to the distribution of cases for trial does not deprive the district judge of
the jurisdiction conferred upon him by law.
3. ID.; ID.; APPOINTMENT OF ACTING FISCAL. When a regular provincial fiscal fails to discharge any of
the duties of his position, the judge of the Court of First Instance of the province may appoint an acting provincial
fiscal to discharge the neglected duty (Sec. 1679, Administrative Code).
4. ID.; ID.; ID.; DISCRETION OF JUDGE IN DETERMINING WHETHER THE FISCAL HAS DISCHARGED
HIS DUTY. The determination of the question as to whether the fiscal has failed to discharge his duty in the
prosecution of a crime lies to a large extent within the sound discretion of the presiding judge.
5. ID.; TITLE TO OFFICE "DE JURE" OR "DE FACTO;" "QUO WARRANTO." The title to the office of a
judge, whether de jure or de facto, can only be determined in a proceeding of the nature of quo warranto and cannot
be tested by prohibition.
6. ID.; ID.; USURPER. A de facto judge is one who exercises the duty of a judicial office under color of an
appointment or election thereto. He differs, on the one hand, from a mere usurper who undertakes to act officially
without any color of right, and on the other hand, from a judge de jure, who is in all respects legally appointed and
qualified and who term of office has not expired.
7. ID.; JUDGE HOLDING OVER AFTER CONCLUSION OF HIS TERM. In the absence of any constitutional
or statutory regulation on the subject, the general rule is that an incumbent of an office will hold over after the
conclusion of his term until the election and qualification of his successor.

8. ID.; ID.; JUDGE "DE FACTO." A judge who is holding over in good faith and who successor has not been
appointed, is a judge de facto.
9. ID.; VALIDITY OF OFFICIAL ACTS OF "DE FACTO" JUDGE." The official acts of a de facto judge are as
valid for all purposes as those of a de jure judge so far as the public or third persons who are interested therein are
concerned. The rule applies both to civil and criminal matters.
10. "DE FACTO" OFFICER; TITLE CANNOT BE QUESTIONED IN PROHIBITION PROCEEDINGS. The
title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent
him from doing official acts.

DECISION

OSTRAND, J.:

This is a petition for a writ of prohibition enjoining the respondent judge from taking cognizance of certain civil and
criminal election cases in which the petitioners are parties.
The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First
Instance of Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that
he now has reached that age and, therefore, under provisions of section 148 of the Administrative Code as amended,
is disqualified from acting as a judge of the Court of First Instance. The petitioners further allege that in view of the
many election protests and criminal cases for violation of the election law filed in the Court of First Instance of
Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated
and acted as auxiliary judge of the Province of Oriental Negros; that between the auxiliary judge and the respondent
judge herein there was an understanding, and the assignment of the said auxiliary judge was made with this
understanding, that the said auxiliary judge so designated would hear and take cognizance of all election protests
and criminal actions then pending or to be filed arising from the said last general election, and that the respondent
Honorable Nicolas Capistrano would try and hear the ordinary cases pending in the said court, but, notwithstanding
this understanding or agreement, the respondent judge tried and is still trying to take cognizance of the election
protests and criminal actions in said court; that the respondent judge declared in open court that he will try the
criminal cases herein mentioned for the reason that the auxiliary judge refused to try the same on the ground that the
preliminary investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make the
statement imputed to him and was and is still willing to try all the election protests and criminal cases for violation
of the election law pending in the court of the Province of Oriental Negros; that the respondent Honorable Nicolas
Capistrano, in spite of the fact that he was holding and is now pretending to hold the office of judge of the Court of
First Instance of Oriental Negros, took great interest and active part in the filing of criminal charges against the
petitioners herein to the unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations,
when the provincial fiscal refused to file criminal charges against the petitioners for violation of the election law for
lack of sufficient evidence to sustain the same; that said respondent is neither a judge de jure nor de facto, but that,
notwithstanding this fact, he continues to hold the office of judge of the Court of First Instance of Oriental Negros
and pretends to be a duly qualified and acting judge of the said province; and that he has tried, and continues to try,
to act as such judge and that there is reasonable ground to believe that he will take cognizance of the cases in
question unless he be restrained by order of this court; that, in acting as a duly qualified judge notwithstanding the
facts alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to act without
and in excess of jurisdiction and also after the loss of jurisdiction.
To this petition the respondents demur on the ground that the facts stated do not entitle the petitioners to the relief
demanded in that (1) none of the facts alleged in the petition divest the respondent judge of his jurisdiction to take
cognizance of the cases referred to in the complaint, and (2) even admitting as true, for the sake of this demurrer, the
facts alleged in paragraph 7 of the petition, the respondent judge is still a de facto judge and his title to the office and
his jurisdiction to hear the cases referred to in the petition cannot be questioned by prohibition, as this writ, even
when directed against persons acting as judged, cannot be treated as a substitute for quo warranto, or be rightfully

called upon to perform any of the functions of that writ.

The grounds upon which the petition rests may be reduced to three propositions: (1) That the assignment of the
Auxiliary Judge, Sixto de la Costa, to Dumaguete was made with the understanding that he was to hear and take
cognizance of all election contests and criminal causes for violation of the election law and that the respondent judge
was to take cognizance of the ordinary cases and that there was an understanding between them that this
arrangement was to be followed.
(2) That the respondent judge took great interest and an active part in the filing of the criminal charges against the
petitioners herein to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the
regular provincial fiscal refused to file them for lack of sufficient evidence.
(3) That the respondent judge is already over 65 years of age and has, therefore, automatically ceased as judge of the
court of First Instance of Oriental Negros and that he is neither a judge de jure nor de facto.
(a) But little need be said as to the first proposition. A writ of prohibition to a judge of an inferior court will only lied
in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it is
obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent judge of
the jurisdiction conferred upon him by law. It may be noted that it is not alleged that another judge had taken
cognizance of the cases in question or that they had been definitely assigned to trial before such other judge.
(b) The second proposition is equally untenable. That the respondent judge took great interest and an active part in
the filing of the criminal charges against the petitioners to the extent of appointing a deputy fiscal when the regular
provincial fiscal refused to file the proper informations, did not disqualify him from trying the cases in question.
Section 1679 of the Administrative Code provides that "when a provincial fiscal shall be disqualified by personal
interest to act in a particular cases or when for any reason he shall be unable, or shall fail, to discharge any of the
duties of his position, the judge of the Court of First Instance of the province shall appoint an acting provincial
fiscal, . . ." (Italics ours.)
The determination of the question as to whether the fiscal has failed to discharge his duty in the prosecution of a
crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge, and there is no
allegation in the petition that such discretion was abused in the present instance. It is true that it is stated that the
appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of law and not an allegation of
facts upon which such a conclusion can be formed and may, therefore, be disregarded. It follows that in appointing
an acting fiscal, the respondent judge was well within his jurisdiction.
(c) The third ground upon which the petition is based is the most important and merits some consideration. It is well
settled that the title to the office of a judge, whether de jure or de facto, can only be determined in a proceeding in
the nature of quo warranto and cannot be tested by prohibition. But counsel for the petitioners maintains that the
respondent judge is neither a judge de jure nor de facto and that, therefore, prohibition will lie. In this, counsel is
undoubtedly mistaken.
The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of Oriental
Negros, but section 148 of the Administrative Code, as amended, provides that "Judges of the Court of First Instance
and auxiliary judges shall be appointed to serve until they shall reach the age of sixty-five years." In view of this
provision and assuming, as we must, that the allegations of the petition are true, it is evident that the respondent is
no longer a judge de jure, but we do not think that it can be successfully disputed that he is still a judge de facto.
Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or
election thereto (Brown v. OConnell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who
undertakes to act officially without any color of right, and on the others hand, from a judge de jure who is in all
respects legally appointed and qualified and whose term of office has not expired (State v. Carroll, 38 Conn., 449;
Denny v. Mattoon, 2 Allen [Mass. ], 361; Van Slyke v. Farmers Mut. Fire Ins. Co., 39 Wis., 390).
"Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an
incumbent of an office will hold over after the conclusion of his term until the election and qualification of a

successor" (22 R. C. L., pp. 554-5). When a judge in good faith remains in office after his title has ended, he is a de
facto officer (Sheehans Case, 122 Mass., 445).
Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on
the assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office
may have expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as
holding over in good faith. The contention of counsel for the petitioners that the auxiliary judge present in the
district must be considered the regular judge seems obviously erroneous.
In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full
exercise of his public judicial functions, cannot be questioned by any merely private suitor, nor by any other,
excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative
of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it
is a well established principle, dating from the earliest period and repeatedly confirmed by an unbroken current of
decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far
as the public or third persons who are interested therein are concerned. The rule is the same in civil and criminal
cases. The principle is one founded in policy and convenience, for the right of no one claiming a title or interest
under or through the proceedings of an officer having an apparent authority to act would be safe, if it were necessary
in every case to examine the legality of the title of such officer up to its original source, and the title or interest of
such person were held to be invalidated by some accidental defect or flaw in the appointment, election or
qualification of such officer, or in the rights of those from whom his appointment or election emanated; nor could
the supremacy of the laws be maintained, or their execution enforced, if the acts of the judge having a colorable, but
not a legal title, were to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto
cannot be called in question in any suit to which he is not a party. The official acts of a de facto justice cannot be
attacked collaterally. An exception to the general rule that the title of a person assuming to act as judge cannot be
questioned in a suit before him in generally recognized in the case of a special judge, and it is held that a party to an
action before a special judge may question his title to the office of judge on the proceedings before him, and that the
judgment will be reversed on appeal, where proper exceptions are taken, if the person assuming to act as special
judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a
writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a judgment
rendered by him. Having at least colorable right to the officer his title can be determined only in a quo warranto
proceeding or information in the nature of quo warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.)
The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the petition cannot be
cured by amendment, the present proceedings are hereby dismissed with the costs against the petitioners jointly and
severally. The preliminary injunction hereinbefore issued in dissolved. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur.
G.R. No. 154674

May 27, 2004

THE CIVIL SERVICE COMMISSION, petitioner,

vs.
FELICISIMO O. JOSON, JR., in his capacity as former Administrator of the Philippine Overseas
Employment Administration (POEA), respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated August 12, 2002 reversing
Resolution No. 002778 of the Civil Service Commission (CSC) which denied the respondents request for payment
of the salary of Priscilla Ong, as Executive Assistant IV in the Office of the Philippine Overseas Employment
Administrator (POEA) for the period of July 1, 1995 to October 31, 1995.

The antecedents are as follows.

On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then Administrator of the Philippine Overseas Employment
Administration (POEA) appointed Priscilla Ong as Executive Assistant IV in his office under a contractual status.
The appointment was made after the Department of Budget and Management (DBM) thru Director Miguel B.
Doctor2 approved his request for the creation of a contractual position of Executive Assistant IV at the Office of the
POEA Administrator, effective not earlier than July 1, 1995.
Subsequently, respondent Joson wrote the CSC requesting exemption from the rule requiring appointees to
confidential staff positions to meet the prescribed educational qualification. 3 The educational requirement for the
position of Executive Assistant is a "Bachelors degree relevant to the job"4 and Priscilla Ong was not a college
degree holder.
Acting upon this request, the petitioner CSC issued Resolution No. 956978 on November 2, 1995, approving the
appointment of Ong under a Coterminous Temporary status:
In this case, it is clear that Ong does not meet the educational qualification for the position of Executive
Assistant IV. However, considering that Ong has to her credit 65 units leading to a Bachelors degree and
that the said position is coterminous with the appointing authority and belongs to his confidential/personal
staff, the proposed appointment of Ong may be allowed under Coterminous Temporary status.
WHEREFORE, the instant request of Administrator Felicisimo O. Joson, Jr. is hereby granted.
Accordingly, the appointment of Priscilla E. Ong to the position of Executive Assistant IV, POEA, may be
approved under Coterminous Temporary status.5
However, on February 6, 1996, Director Nelson Acebedo of the CSC National Capital Region (NCR) issued a post
audit report on the issuance of Ongs appointment made on July 1, 1995, and invalidated the same. A motion for
reconsideration was filed, stressing, among others, that the Department of Budget Management (DBM) allowed the
POEA to create such a position not earlier than July 1, 1995 and that no less than the petitioner itself approved the
appointment under a coterminous temporary status. Upon the instructions of Director Acebedo, the effectivity of
Ongs appointment was changed from July 1, 1995 to November 2, 1995.6
Considering the said adjustment in the effectivity date of Ongs appointment, the respondent then requested
approval for the payment of her salary for services rendered for the period of July 1, 1995 to October 31, 1995.
The petitioner denied the request for the payment of Ongs salary in Resolution No. 974094 dated October 16,
1997.7 Citing Rep. Act No. 7430 also known as the Attrition Law which, in part, states that no appointment shall be
made to fill up a vacancy unless an authority has been granted by it,8 the petitioner posited that the authority to fill
the position was granted only on November 2, 1995 when it issued CSC Resolution No. 956978. The request for the
payment of salary referred to the period prior to the date of authority to fill the position; such claim cannot,
therefore, be allowed. The petitioner concluded that, as the appointing authority, it is the respondent who shall be
personally liable for the payment of salaries as provided in Item 5(a), Part I, CSC MC No. 38, s. 1993, which states:
5. Liability of Appointing Authority and Other Officers
a. The appointing authority shall be personally liable for the salary of appointees whose
appointments have been disapproved for violation of pertinent laws such as RA 7041 and RA
7430.9
The respondent filed a motion for reconsideration, averring that Ong was appointed to a newly-created position
which does not require any such authority from the petitioner. The respondent emphasized in his motion that the
DBM approved the creation of the position for Ong. He asserted that, if at all, it is the POEA who should be liable
under the principle of quantum meruit since the latter was the one benefited. Thus:

Admittedly, the herein movant requested an Authority to fill the said position which was not necessary
under the premise since the position involved was a newly created position. In the first place, the
Department of Budget and Management through the Director of CPCB granted the request for the creation
of said position due to the dire need and necessity of said provision. POEA could not have transgressed any
provision of RA 7430 and its implementing rules when POEA appointed Ms. Ong to the said newly created
position on July 1, 1995.
POEA should pay Ms. Ong for her services since POEA was the one benefited not the herein movant in
his personal capacity. The principle of quantum meruit dictates that not only is the one who rendered
services who should paid (sic) but equally important, is that the one benefited from such services must be
the one who should pay the services. If the herein movant would be made personally liable to pay for her
services, just the same, it is tantamount to unjust enrichment on the part of the government at the movants
expense10
On June 8, 1998, the petitioner issued Resolution No. 981399 denying the respondents motion for
reconsideration.11 It affirmed its ruling that the effectivity date of Ongs appointment should be reckoned from
November 2, 1995 when it granted the authority to the respondent to fill the position, and not July 1, 1995 as
asserted by the respondent. It also declared that Ongs appointment was not included in the POEAs Report on
Personnel Action (ROPA) submitted to the petitioner for the month of July 1995:
POEA, as an accredited agency is mandated by CSC rules to submit within fifteen (15) days of each
ensuing month to the Civil Service Regional office of Field Office concerned two copies of Monthly
Report on Personnel Action, together with certified true copy of appointments acted upon (Item, 2.2.7, Rule
V, CSC Memorandum Circular No. 27, s. 1994). In the instant case, POEA failed to comply with this rule
when it did not include the appointment of Ong in its July ROPA. 12
The petitioner also held that the POEA only submitted Ongs appointment in its ROPA for the month of November
1995. Such belated report rendered the appointment in July ineffective. 13 The petitioner concluded that there was
clearly no legal basis for the payment of Ongs salary prior to November 2, 1995, and that the principle ofquantum
meruit invoked by the respondent was not applicable.
The respondent moved for a clarification of CSC Resolution No. 981399, pointing out that the petitioner did not rule
on the matter of POEAs alleged violation of the Attrition Law, particularly on the failure to secure "prior authority
to fill." The respondent asserted that the POEAs alleged failure to include the proposed appointment of Ong in its
July 1995 ROPA was justified because Ongs appointment was still the subject of a request for exemption from the
requirement of Memorandum Circular (MC) No. 38, s. 1993. The respondent received CSC Resolution No. 956978
approving Ongs appointment under a coterminous temporary status only on November 5, 1995; hence, the
appointment was included only in the November ROPA. The respondent pointed out that the task and duty of
preparing and submitting the monthly ROPA lies with the officials of the Personnel Department of the POEA.
Finally, the respondent averred, if there was, indeed, a failure to comply with the CSC Circular No. 27, Series of
1994, it would be quite unfair and unjust for the petitioner to order the respondent to pay the salary of Ong out of his
(the respondents) personal funds.
The petitioner denied the motion of the respondent in Resolution No. 991839 dated August 17, 1999. It held that the
respondent as the appointing authority, was accountable for all the appointments he issued; he cannot, thus, hide
behind the mistakes of his subordinates. The petitioner also reiterated its ruling that the appointment of Ong was
made in violation of the CSC Law and its rules. As such, the respondent must assume responsibility for the payment
of Ongs salary. Thus:
WHEREFORE, the CSC Resolution No. 981399 dated June 8, 1998 is hereby clarified. Accordingly, the
payment of salaries, benefits and other emoluments from July 1, 1995 to October 30, 1995 of Priscilla Ong,
whose appointment was in violation of R.A. 7430 (Attrition Law), shall be the personal liability of then
Administrator Felicisimo O. Joson.14

The respondent filed a motion for reconsideration of the resolution.

The petitioner treated the pleading as a second motion for reconsideration, and denied the same in Resolution No.
001956 dated August 30, 2000, in this wise:
WHEREFORE, the second Motion for Reconsideration of Felicisimo O. Joson, Jr. is hereby DENIED.
Accordingly, the CSC Resolution No. 974094 dated October 16, 1997 stands. 15
The petitioner filed another motion seeking for the reconsideration of the CSC Resolution No. 991839 pointing out
that Ong may be considered a de facto public officer who is entitled to the payment of salaries for actual services
rendered. The CSC outrightly denied the motion in CSC Resolution No. 002778 dated December 13, 2000:
WHEREFORE, the instant motion for reconsideration is hereby DENIED for lack of merit. Consequently,
CSC Resolution No. 991839 dated August 17, 1999 stands. This case is considered closed and terminated. 16
Unfazed, the respondent appealed the CSC resolutions to the Court of Appeals. On August 12, 2002, the CA
rendered the assailed judgment in favor of herein respondent, ruling that Ong was considered a de facto officer and
is entitled to the payment of her salary. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, the instant petition for review is hereby GRANTED. Resolution
No. 002778 dated 13 December 2000 rendered by public respondent Civil Service Commission, denying
payment of Miss Priscilla Ongs compensation from 1 July 1995 to 31 October 1995, is hereby SET
ASIDE.17
Hence, this petition for review on certiorari raising the lone issue that:
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PRISCILLA ONG IS
ENTITLED TO PAYMENT OF HER SALARIES FROM THE GOVERNMENT FOR BEING A DE
FACTO OFFICER.
The petitioner maintains that Ong cannot be entitled to the payment of salary prior to November 2, 1995 because of
the following: (a) Ong did not possess the necessary qualification for the position; (b) her appointment was made in
violation of the Civil Service Law and its rules; (c) there was no prior authority to appoint, in violation of Rep. Act
No. 7430; and, (d) the appointment was not reported in the July ROPA, making such appointment ineffective.
We rule for the respondent.
The records show that the position of Executive Assistant IV in the POEA Administrators office was created with
the approval of the DBM on July 1, 1995. This was pursuant to a request made by the respondent for a position in
his office under a contractual status. It is quite apparent that the respondent intended the position for his confidential
assistant, Priscilla Ong, whom he considered efficient and competent on the job, albeit without a college degree. The
respondent was aware of the appointees lack of qualification which is precisely the reason why he requested for an
exemption from the requirements of the MC No. 38 s. 1993, particularly on the educational requirement of
appointees to confidential staff positions.
On November 2, 1995, the petitioner granted the respondents request and stated that the appointment of Ongmay be
approved under a coterminous temporary status.18
The task of the petitioner is to insure that the appointee has all the qualifications for the position; otherwise it
disapproves the appointment.19 In this case, the petitioner approved the appointment of Ong under a coterminous
temporary status; coterminous, because the appointment shall only be during the tenure of the appointing power; and
temporary, because the appointee did not meet all the requirements for the position. As such, the appointment could
be recalled anytime. The petitioner took into account the fact that Ong was then enrolled in CAP College, Makati

City and had 65 units credited to her leading to a four-year course in Bachelor of Science in Business
Administration, and that she just needed 61 units more to complete the same.
Under Section 4, Rule V of the Omnibus Rules, Ongs appointment is in order, viz:
Except as otherwise provided herein, a person who meets all the requirements of the position including the
appropriate civil service eligibility shall be appointed to a position in the first and second levels. However,
when the immediate filling of a vacancy becomes necessary, taking into account the public interest, and a
person with an appropriate civil service eligibility is not actually and immediately available, a person
without the appropriate civil service eligibility but who meets the other requirements of the position may be
appointed. His appointment shall be temporary for a period of not more than twelve (12) months and he
may be replaced at any time with one who has an appropriate civil service eligibility.
In approving the appointment of Ong, the petitioner took into account the exigency and urgency of filling up the
position of Executive Assistant, as embodied in the letter of the respondent for exemption from MC No. 38:
Our request for exemption from MC # 38 series of 1993 is anchored on the fact that I have no regular
holder of an Executive Assistant, although it is included in the POEA budget. As earlier mentioned in our
letter-request, as the administrationship of POEA keeps on changing, the Executive Assistant post remains
attached to another employee who can not be asked to vacate the post because of the security of tenure of
the incumbent at the time the Executive Assistant post was declared confidential in nature. We recognize
and support the reason behind the promulgation of CSC MC # 38 series 1993. However, please consider the
circumstances behind this request for exemption. Ms. Ong has been the holder of the position since my
appointment last July 1992 under the Ramos government.
May I reiterate that the position of Ms. Ong is temporary in nature and co-terminous with my term.
Moreover, she is now enrolled at the CAP College taking up BS in Business Administration.20
The respondent reiterated the urgency of Ongs appointment in his letter-request for the payment of Ongs salary:
Please note that the Office of the Administrator is the center of all communications coming in and out of
POEA as well as the focal point of all major activities whether internal or external concerns. As such, the
smooth operations of this office would not have been possible without the able and dedication of Ms. Ong
who faithfully discharged her gargantuan duties as Executive Assistant to the highest official of POEA. It
would be an injustice to Ms. Ong if she is not properly compensated for a job very well done especially in
such a sensitive position.21
With the foregoing, it can not be said that for want of a college degree as required under MC No. 38, s. 1993 for
confidential/personal positions, Ongs appointment was in contravention of the CSC Law and its rules. While it is
conceded that the respondent intended the appointment of Ong to be contractual only, the petitioner approved the
same in Resolution No. 956978, under a Coterminous-Temporary status. The appointment of Ong on July 1, 1995,
is, therefore, valid.
We reject the petitioners contention that Ongs appointment was invalid since the respondent appointed her to the
position without first securing an "authority to fill" as mandated by the second to the last paragraph of Section 3 of
Rep. Act No. 7430. The said provision reads:
SECTION 3. Attrition. Within five (5) years from the approval of the Act, no appointment shall be
made to fill vacated positions in any government office as a result of resignation, retirement,
dismissal, death or transfer to another office of an officer or employee: Provided, however, That this
prohibition shall not apply in the following instances:
(a) Where the position is head of a primary organic unit such as chief of division;

(b) Where the position is the lone position in the organizational unit and it corresponds to a
particular expertise that is intrinsic to the desired basic capability of the unit concerned;
(c) Where the positions are basic positions for the initial operations of newly created or activated
agencies or, in the case of other agencies, where the positions are vital and necessary for the
continued and efficient operation of said agencies;
(d) Where the positions are difficult to fill considering the qualifications required therefore, as in
the case of doctors, lawyers and other professionals;
(e) Where the positions are found in agencies declared to be understaffed;
(f) Positions in Congress or in the Judiciary;
(g) Appointments or designations extended by the President;
(h) Where the positions are found in local government units;
(i) Teaching personnel; and
(j) Where the replacement come from existing employees.
Provided, further, That the exemptions from this prohibition shall require authorization by the Civil Service
Commission; Provided, finally, That no appointment shall be issued by the appointing authority nor
approved by the Civil Service Commission without said authorization.22
Appointments made in violation of this Act shall be null and void.
In CSC Resolution No. 974094, the petitioner denied the respondents motion for the POEA to pay Ongs salary
based on the second to the last paragraph of Section 3, viz:
The Commission further finds no merit in the request because of the mandatory provision of Republic Act
7430 (Attrition Law) which states as follows:
No appointment shall be made to fill up a vacancy unless an authority has been granted by the
Commission.23
But even a cursory reading of Section 3 of Rep. Act No. 7430 will readily show that it applies only to
appointments to fill vacant position in a government office as a result of resignation, retirement, dismissal,
death, or transfer to another office of an officer or employee within five years from the approval of the law.
Under the law, attrition is defined as the reduction of personnel as a result of resignation, retirement,
dismissal in accordance with existing laws, death or transfer to another office.24
The appointment of Ong to the position of the Executive Assistant IV in the Office of the respondent is not covered
by Rep. Act No. 7430 because Ong was appointed to a newly-created position as part of the confidential/personal
staff of the respondent. The position was approved by the DBM. The petitioner attested the appointment as
coterminous temporary. The position to which Ong was appointed was not rendered vacant as a result of the
resignation, retirement, dismissal, death or transfer of an employee to another office, as provided by the law. Thus,
the petitioner cannot argue that the respondent violated the Attrition Law in appointing Ong.
The law must not be read in truncated parts; its provisions must be read in relation to the whole law. It is the cardinal
rule in statutory construction that a statutes clauses and phrases must not be taken as detached and isolated

expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts in
order to produce a harmonious whole.25 Every part of the statute must be interpreted with reference to the context,
i.e., that every part of the statute must be considered together with other parts of the statute and kept subservient to
the general intent of the whole enactment.26
We find the respondents justification for the failure of the POEA to include Ongs appointment in its ROPA for
July 1995 as required by CSC Memorandum Circular No. 27, Series of 1994 to be in order. The records show that
the POEA did not include the contractual appointment of Ong in its July ROPA because its request for exemption
from the educational requisite for confidential staff members provided in MC No. 38 had yet been resolved by the
CSC. The resolution of the petitioner granting such request was received only in November, 1995. The POEA,
thereafter, reported the appointment in its November, 1995 ROPA.
Having been validly appointed to the position of Executive Assistant IV in the Office of the respondent, Ong is a de
jure officer and not a de facto officer as held by the Court of Appeals. The broad definition of what constitutes an
officer de facto was formulated by Lord Holt in Parker v. Kent,27 and reiterated by Lord Ellenborough and full
Kings Bench in 1865 in Rex v. Bedford Level,28 "One who has the reputation of being the officer he assumes and
yet is not a good officer in point of law." A de facto officer is one who is in possession of the office and discharging
its duties under color of authority.29 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. 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. It may be
likened to the difference between character and reputation. One is the truth of a man, the other is what is thought of
him."30 It is the color of authority, not the color of title that distinguishes an officer de facto from a usurper.31 Being
a de jure officer, Ong is entitled to receive all the salaries and emoluments appertaining to the position. 32
Irrefragably, Ong assumed the position and discharged her functions as Executive Assistant IV on July 1, 1995.
Thenceforth, she was entitled to the payment of her salary, as provided for in Section 10 of Rule V of the Omnibus
Rules of the Civil Service Commission on the matter of Appointments, viz:
An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its
issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall
be entitled to receive his salary at once, without awaiting the approval of his appointment by the
Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall
an appointment take effect earlier than the date of its issuance. 33
MC No. 38, s. 1993, likewise reads:
7. Effectivity of Appointment
a. The effectivity of an appointment shall be the date of actual assumption by the appointee but not
earlier than the date of issuance of the appointment, which is the date of signing by the appointing
authority.
b. No appointment shall be made earlier than the date of issuance, except in the case of change of
status in view of qualifying in written examination, the effectivity of which is the date of release of
the result of the examination. However, the issuance of such appointments shall be within the
period of the temporary appointment or provided the temporary appointment has not yet expired
Moreover, the Court of Appeals took note of CSC Resolution No. 953263 dated May 23, 1995 which
states, thus:
If the appointment was disapproved on grounds which do not constitute a violation of the civil
service law, such as the failure of the appointee to meet the Qualification Standards (QS)
prescribed for the position, the same is considered effective until disapproved by the
Commission or any of its regional or field offices. The appointee is meanwhile entitled to

payment of salaries from the government. Furthermore, if a motion for reconsideration or an

appeal from the disapproval is seasonably filed with the proper office the appointment is still
considered to be effective. The disapproval becomes final only after the same is affirmed by the
Commission.34
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals,
insofar as it is consistent with this Decision, is AFFIRMED.
SO ORDERED.
Davide, Jr.*, Puno*, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

G.R. No. 90762

May 20, 1991

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,

vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the
Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer
FLORENCIO LUNA,respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
RESOLUTION

GUTIERREZ, JR., J.:

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the
petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the
August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as
Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to
emoluments while actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been
proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor,
Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to
act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no
provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment

of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily
performing the functions of the Governor, could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the
Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held
invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution
reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no
permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the
Vice-Governor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official
communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio
L. Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting ViceGovernor 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.1wphi1 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 Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the
electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the
Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local
Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor
of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. The letter states:

In view thereof, please correct previous actions made by your office and those of the Sangguniang
Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as
acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of
such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier
request.
Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct
Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of ViceGovernor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting
Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was
proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio
Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of
P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which
he received while acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that
this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the ViceGovernor 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 ViceGovernor, 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 ViceGovernor, 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 Vice-Governor. The nature of the duties of a Provincial
Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period.
Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office
of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner
shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to
ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is
doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government
had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office
of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is
wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor.
For about two years after the governatorial elections, there had been no de jure permanent Governor for the province
of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case
before the Commission on Elections.
The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of
the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any
remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules
that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary
appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded
nothing less than the immediate appointment of an acting Vice-Governor.
The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and
reconsidered his previous position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President
is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur.
Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any
contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason
why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents
contend that the provincial board is the correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by law and the members of the board who are
junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of
their right of representation and governance in their own local government.
In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated
or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a
consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is
missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher
officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two
years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the
vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems
and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do
not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year
period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for
Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of
those in the government. It is a continuous duty unbridled by any political considerations.
The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code.
There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses
to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise
permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . .
member who obtained the highest number of votes in the election immediately preceding, . . . shall assume
the office for the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies
may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the
vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number
of votes. The Department Secretary acted correctly in extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be remunerated to the petitioner, following the example in
Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double
compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary
authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power
to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the
Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the
petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was

passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of
the petitioner was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is
based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the
services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61
SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which
the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board
Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be
retained by him.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, GrioAquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

G.R. No. L-3474

December 7, 1949

THE NACIONALISTA PARTY, MARCELO ADDURU, DOMOCAO ALONTO, PEDRO C. HERNAEZ,

TRINIDAD F. LEGARDA, ALEJO MABANAG, CLARO M. RECTO, JOSE O. VERA, and JOSE
VELOSO Petitioners, vs. VICENTE DE VERA, as Chairman of the Commission on Elections, Respondent.
Claro M. Recto, Manuel C. Briones, Jesus Barrera, J., Antonio Araneta and Alberto M. K. Jamir for petitioners.
Vicente de Vera in his own behalf as Chairman of the Commission on Elections, respondent.
MORAN, C.J.: chanrobles virtual law library
This is the special action for prohibition filed by the Nacionalista Party and its official candidates for senators
against Vicente de Vera, Chairman of the Commission on Elections, to enjoin him from sitting or taking part in the
deliberations of said Commission in connection with the elections of November 8, 1949, on two grounds: (1) that he
is the father of Teodoro de Vera one of the candidates of the Liberal Party for the position of senator in the last
election and, for that reason, he is disqualified from acting on all matters connected with said elections; and (2) that
his appointment as Chairman of the Commission on Elections is a violation of the Constitution and, therefore, it is
void ab initio.chanroblesvirtualawlibrary chanrobles virtual law library
Ichanrobles virtual law library
Rule 126, section 1, of the Rules of Court, invoked by petitioners to disqualify the respondent, is as follows:
SECTION 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity , computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his
ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and
entered upon the record.
Upon the other hand, section 2 of said Rule 126, providing the procedure to be followed in the disqualification of
judges or judicial officers, is as follows:

SEC. 2. Objection that judge disqualified, how made and effect. - If it be claimed that an official is disqualified from
sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection,
stating the grounds therefor, and the official shall thereupon proceed with the trial , or withdraw therefrom, in
accordance with his determination of the question of his disqualification. His decision shall be forthwith made in
writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his
decision in favor of his own competency, until after final judgment in the case.
Under this provision, the party seeking the disqualification of a judge officer must, in writing, file with said official
his objection, stating the grounds therefor, and if the objection is denied, the remedy is an appeal to be taken after
final judgment is rendered in the case. For this reason, the petition for prohibition is
improper.chanroblesvirtualawlibrary chanrobles virtual law library
This is on the assumption that the Rules of Court are applicable to the Commission on Elections, but in truth they
are not. Section 13, Article VIII of the Constitution granted to the Supreme Court "the power to promulgate rules
concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall
be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights," Courts, as
referred to in this Constitutional provision, are those bodies vested with the judicial power by Article VIII, section 1
of the Constitution, and they do not include the Commission on Elections, which, in a separate Article ( X) of the
Constitution, is created as an independent administrative body with the "exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections," with the power to decide "all administrative questions
affecting elections save those involving the right to vote." Under the Constitution the Supreme Court has no general
powers of supervision over the Commission on Elections except those specifically granted by the Constitution, that
is, to review the decisions, orders and rulings of the Commission which may be brought up properly before the
Supreme Court.chanroblesvirtualawlibrary chanrobles virtual law library
If it is true as suggested that the Rules of the Court have been adopted in a suppletory character by the Commission
on Elections, such adoption can have no reference but to those rules that are necessary for the functioning of the
Commission and which are not inconsistent with the nature of its proceedings, and therefore it does not include the
rules of disqualification of judicial officers. the Commission has no authority to adopt or promulgate rules of such
nature.chanroblesvirtualawlibrary chanrobles virtual law library
We hold, therefore, that the Rules of the Court are not applicable to the Commission on Elections, and consequently
whether or not a Commissioner may or not act on matters in which a son of his is directly interested, is a question of
decorum and ethics for him exclusively to decide. The silence of the Constitution in that regard may well be
interpreted to mean that all prohibition to that effect is unnecessary because the persons to be selected for such
delicate positions in the Commission should be of such high morality as to exclude all probability of transgression of
simple rules of decency or good taste.chanroblesvirtualawlibrary chanrobles virtual law library
In the instant case, respondent, in his answer, avers that he has disqualified himself from acting as Chairman of the
Commission in all matters in which his son has a direct interest. There is no showing that this averment is not
true.chanroblesvirtualawlibrary chanrobles virtual law library
IIchanrobles virtual law library
The second ground invoked by the petitioners is that respondent's appointment to the Chairmanship of the
Commission on Elections is void ab initio because he was already a member of the Commission when he was
appointed its chairman and such appointment is in fact a reappointment, which is expressly prohibited by the
Constitution. In this jurisdiction the writ of prohibition cannot be availed of as a substitute for quo warranto. The
ground invoked by the petitioners would be proper in quo warranto proceedings but not in a petition for prohibition.
The writ of prohibition has been allowed in the Philippines, not only against courts and tribunals in order to keep
them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other
tribunals, but also, in appropriate cases, against an officer or person whose acts are without or in excess of his
authority. Thus, a writ of prohibition has been issued against the Director of Posts who attempted to do the act that
was offensive to the Constitution (Aglipay vs. Ruiz, 64 Phil., 201), or against the Commissioner of Civil Service

who attempted to conduct an investigation that was violative of the Constitution (Planas vs. Gil, G.R. No. 46440,
Jan. 18,1939, 37 Off. Gaz., 1228), 1 or against the City of Manila, which attempted to enforce an ordinance which
was null and void (Rodriguez vs. city of Manila, 46 Phil., 171). but when the petition for prohibition seeks to inquire
into person's title to an office which he is holding under the color of right, it has been denied upon the ground
that quo warranto is the proper remedy. Thus, in Takyo v. Capistrano, 53 Phil., 866, a petition for prohibition was
filed against Judge Capistrano to enjoined him from taking cognizance of certain civil and criminal cases on the
ground that he was more than 65 years of age and under the law then in force he had ceased to be a judge. This
Court held that Judge Capistrano was a judge de facto and the remedy prayed for could not be granted for the reason
that : "The rightful authority of a judge, in full exercise of his public judicial functions, cannot be questioned by any
merely private suitor, nor by any other, excepting in the form especially provided by law. A judge de facto assumes
the exercise of a part of the prerogative of sovereignty and the legality of that assumption is open to the attack of the
sovereign power alone. Accordingly, it is well established principle, dating from the earliest period and repeatedly
confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all
purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.
The rule is the same in civil and criminal cases. The principle is one founded in policy and convenience, for the right
of no one claiming a title or interest under or through the proceedings of an officer having an apparent authority to
act would be safe, if it were necessary in every case to examine the legality of the title or interest of such person
were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such
officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the
laws be maintained , or their execution enforced if the acts of the judge having a colorable, but not a legal title, were
to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in
question in any suit to which he is not a party. The official acts of a de facto justice cannot be attacked collaterally.
An exception to the general rule that the title of a person assuming to act as judge cannot be questioned in a suit
before him is generally recognized in the case of a special judge on the proceedings before him, and that the
judgment will be reversed on appeal, where proper exceptions are taken, if the person assuming to act as a special
judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain
the writ of a prohibition to prevent him from doing an official act, nor in a suit to enjoin the collection of a judgment
rendered by him. Having at least colorable right to the office his title can be determined only in a quo
warranto proceeding or information in the nature of a quo warranto at suit of the sovereign." (15 R.C. L., pp. 519521.)chanrobles virtual law library
It is unnecessary to say that the exception as to a special judge is not applicable to respondent who is not a special
Commissioner.chanroblesvirtualawlibrary chanrobles virtual law library
In the United States, the prevailing rule is that "the writ of prohibition, even when directed against persons acting as
judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to
perform any of the functions of that writ. If there is a court, judge or officer de facto, the title to the office and the
right to act cannot be questioned by prohibition. if an intruder takes possession of a judicial office, the person
dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from
performing judicial acts, since in its very nature prohibition is an improper proceeding by which to determine the
title to an office. And the writ of prohibition will not issue against a judge de facto on the ground that the statute
purporting to confer authority upon the governor to appoint him is unconstitutional. (42 Amer. Jur., 156.)chanrobles
virtual law library
We hold, therefore, that quo warranto and not prohibition is the proper remedy to inquire into validity of
respondent's appointment as Chairman of the Commission on Elections. And we would stop here were it not because
there is apparently some divergence of opinion as to the true import of the constitutional provisions concerning the
appointment of Commissioners of Elections, and some members of the Court have decided to state their individual
opinions on the matter. Under these circumstances, the majority deems is advisable to also express its
views:chanrobles virtual law library
Section 1, Article X of the Constitution reads as follows:
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.
Let us analyze the first two sentences contained in this provision, which concern the appointment of Commissioners
of Elections. The first sentenced reads: "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." (Emphasis ours.) It must
be noticed from this provision that the prohibition against reappointment comes as a continuation of the requirement
that the Commissioners may not reappointed only after they have held office for nine years. Reappointment is not
prohibited when a Commissioner has held office only for say, three or six years, provided his term will not exceed
nine years in all.chanroblesvirtualawlibrary chanrobles virtual law library
Upon the other hand, the second sentence provides that "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 evident purpose of this
provision is to place in the Commission a new member every reappointment that is to be made in favor of a
Commissioner who was held office for less than nine years. It may then be said as a fair interpretation of the
Constitution that appointment may be made in favor of the Commissioner who was held office for less than nine
years, provided it does not preclude the appointment of a new member every three years, and provided further that
the reappointee's term does not exceed nine years in all.chanroblesvirtualawlibrary chanrobles virtual law library
In order to carry out the purpose of the Constitution of placing in the Commission a new member every three years,
it is essential that after the First Commissioners have been appointed, every subsequent appointment shall so fix the
appointee's term of office as to maintain the three years difference between the dates of expiration of the respective
terms of the incumbents. And this can be done if after the appointments of the first three Commissioners, the
successor of any one of them who ceases prior to the expiration of his term, be appointed only for the unexpired
portion of that term. Of course, when a Commissioner ceases because of the expiration of his term his successor
must be appointed for a term of nine years; but when he ceases on other grounds prior to the expiration of his term,
his successor must be appointed only for the unexpired portion of that term, otherwise the appointment would be
offensive to the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
In July, 1945 three Commissioners were appointed: Jose Lopez Vito as Chairman, for a term of nine years;
Francisco Enage, as Member, for a term of six years; Vicente de Vera, as Member, for a term of three years.
Apparently, these were considered as the first Commissioners appointed under the Constitution. Under the
interpretation above stated, Vicente de Vera cannot be reappointed to succeed himself upon the expiration of his
term of three years because that would preclude the appointment of a new member after such period of three years
and would, furthermore, increase his term to twelve years, since, as above indicated, upon the expiration of his term
his successor must be appointed for nine years. But the chairmanship of the Commission became vacant in 1947, by
the death of Chairman Jose Lopez Vito, and Commissioner Vicente de Vera was promoted to occupy this vacancy
for the unexpired term of the former incumbent. There is nothing in that promotion that is offensive to the
Constitution for it does not increase De Vera's term of office to more than nine years nor does it preclude the
appointment of a new member upon the expiration of de Vera's first term of three
years.chanroblesvirtualawlibrary chanrobles virtual law library
It is maintained that the prohibition against the reappointment applies not only to the Commissioner appointed for
none years, but also to those appointed for a shorter period, because the reason underlying the prohibition is equally
applicable to them, the prohibition being, according to this theory, intended to prevent the Commissioners from
being exposed to improper influences that are apt to be brought to bear upon those aspiring for reappointment. It is,
however, doubtful whether this apparently persuasive reasoning is fully justified and supported by the wording of
the Constitution. As above stated, the language of the Constitution does not warrant the interpretation that the
prohibition against reappointment applies not only to Commissioners who have held office for nine years but also to
those appointed for a lesser term. Upon the other hand, reappointment is not the only interest that may affect his
independence. And it is perhaps useless to prohibit reappointment to higher and better paid positions is not at the
same time prohibited. This, apart from the consideration that reappointment is not altogether disastrous. A

Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope of
material reward, his enthusiasm may decline as the end of his term approaches and may he even lean to abuses if
there is no higher restrain in his moral character. Moral character is no doubt the most effective safeguard of
independence. With moral integrity, a commissioner will be independent with or without possibility of
reappointment. Without moral integrity, he will not be independent no matter how emphatic the prohibition on
reappointment might be. That prohibition is sound only as to a Commissioner who has held office for nine years,
because after such a long period of so heavy and taxing work, it is but fair that the venerable Commissioner be given
either a rest well earned or another honorable position for a change.chanroblesvirtualawlibrary chanrobles virtual
law library
For all the foregoing considerations, the petition is denied with costs against
petitioners.chanroblesvirtualawlibrarychanrobles virtual law library
Bengzon, Padilla and Torres, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library
Montemayor and Reyes, JJ., concur in the result. chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
Separate Opinions

OZAETA, J., concurring:chanrobles virtual law library

I concur in the denial of the petition praying that the respondent Hon. Vicente de Vera "be ordered to inhibit himself
and /or permanently enjoined from taking part in any of the deliberations of the Commission on Elections relative to
the national polls of November 8,1949."chanrobles virtual law library
The petition is based on two grounds: (1) That the respondent is disqualified under section 1 of rule 126 of the Rules
of the Court for the reason that Mr. Teodoro de Vera, one of the candidates of the Liberal Party for the position of
senator in the said elections, is the son of the respondent; and (2) that the respondent's term of office as member or
chairman of the Commission on Elections expired in July, 1948.chanroblesvirtualawlibrary chanrobles virtual law
library
I. As to the first ground. - I concede that the provision of section 1 of Rule 126 that no judge or judicial officer shall
sit in any case in which he, or his wife or child, is in any way pecuniarily interested is legally and morally binding
upon any officer who by law is empowered to act as judge between contending parties; for to disregard that legal
and moral precept would be shocking to the common conscience of mankind.chanroblesvirtualawlibrary chanrobles
virtual law library
The respondent shows in his answer that he has followed and intends to follow said rule by inhibiting himself from
taking part in any deliberation of the Commission on matters in which the direct interest of his son Teodoro de Vera
as a candidate is involved. Petitioners have not shown any specific instance contradicting respondent's
assertion.chanroblesvirtualawlibrary chanrobles virtual law library
But even if the respondent should decide in favor of his own competency and refuse to inhibit himself in any
specific case wherein the interest of his son as a candidate is involved, the remedy of the aggrieved party would not
be prohibition or injunction but a petition for review in due course. Section 2 Rule 126 says:

If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency
may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon
proceed with the trial, or withdraw there from, in accordance with his determination of the question of his
disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no
appeal or study shall be allowed from, or by reason of, his decision in favor of his own competency, until after final
judgment in the case.
II. As to the second ground. - It was admitted during the hearing by counsel for the respondent that the latter was
appointed by President Osmea in July, 1945, as member of the Commission on Elections for a term of three years,
expiring in July, 1948; but that after the death of the then chairman of the Commission, Jose Lopez Vito, in 1947,
the respondent was appointed chairman to serve the remaining seven years of Lopez Vito's unexpired
term.chanroblesvirtualawlibrary chanrobles virtual law library
In view of the prohibition in the Constitution against the reappointment of a member of the Commission on
Elections, I am of the opinion that respondent's term of office expired in July, 1948, notwithstanding his subsequent
appointment as chairman in 1947. His tenure of office whether as member or as chairman of the Commission, could
not be extended beyond the original term of three years without violating the constitutional prohibition against
reappointment. This in effect is admitted by the respondent; for in his answer, instead of attempting to justify the
legality of his appointment as chairman, he merely alleges that he "is at least a de facto officer as he has already
been acting as Chairman of this Commission under color of a known appointment and as such his acts are
considered valid."chanrobles virtual law library
That much can be conceded. until his successor is appointed and has qualified, or until he is ousted through quo
warranto proceedings, respondent hold's over as a de facto officer.
An officer is not prevented from continuing to discharge the duties of his office after his term where no successor
has been chosen, even by a provision of the Constitution limiting the term of office and making an incumbent
ineligible to re-election, or declaring that the duration of an office should not exceed a given number of years. (43
Am. Jur., public officers, sec. 161, page 19.)chanrobles virtual law library
In the absence of any constitutional or statutory regulation on the subject, the general rule is that an incumbent of an
office will hold over after the conclusion of his term until the election and qualification of his successor. (Tayko vs.
Capistrano, 53 Phil., 866.)
The respondent is not a usurper, or one "who undertakes to act officially without any color of right." (Tayko vs.
Capistrano, supra.)chanrobles virtual law library
Tayko vs. Capistrano is on all fours with the instant case. That was an action for prohibition originally instituted in
this court upon the allegation that Judge of First Instance Nicolas Capistrano of Negros Oriental had reached the age
of 65 years and, therefore, under the provision of section 148 of the Administrative Code, as amended, was
disqualified from acting as a judge of the Court of first Instance. This court denied the petition for prohibition on the
ground that the respondent judge was a de facto officer, whose title could not be indirectly questioned in a
proceeding to obtain a writ of prohibition to prevent him from doing an official
act.chanroblesvirtualawlibrary chanrobles virtual law library
The fact that the office of a member or chairman of the Commission on Elections was created by the Constitution
while that of a judge of first instance was created by a statute, affords no material difference in the result of the two
cases, for a valid statute is as obligatory as the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
This case differs from G.R. No. L-3452, Nacionalista Party vs. Angelo Bautista in that the latter had no color of title
as acting member of the Commission on Elections, inasmuch as his designation as such was made not only without
authority of law but contrary to the provisions of the Constitution, and therefore, null and void ab
initio.chanroblesvirtualawlibrary chanrobles virtual law library

PARAS, J., dissenting:chanrobles virtual law library

I dissent.chanroblesvirtualawlibrary chanrobles virtual law library
As it is admitted by counsel for the respondent that the Rules of Court, in so far as they are pertinent and applicable,
have been made a part of the rules of the Commission on elections, Rule 126 on disqualification of judicial officers
should guide the respondent in determining whether he should disqualify himself as a member of the Commission. It
is doubtless in view of the precepts embodied in said Rule that the respondent had heretofore inhibited himself in all
matters that might affect his son as a candidate of the Liberal Party for senator, although he dissented from the
resolution of the Commission recommending to the President the suspension of the election in some provinces.
While the reasons for the Rule on disqualification are fundamental and unassailable, the propriety of an inhibition is
the main addressed to the taste and conscience of the officer concerned. In other words, the latter is in the first place
called upon to determine, having in view his human frailties, whether he should sit in any given
case.chanroblesvirtualawlibrary chanrobles virtual law library
If the respondent's disqualification cannot be predicted, with moral or legal certainty, on Rule 126, he should be
disqualified on the ground presently to be stated. The Commission on Elections is the creature of the Constitution
which provide (Article X, section 1) that the Commission shall be composed of a Chairman and the two Members
appointed by the President, with the consent of the Commission on Appointments, for a term of nine years without
reappointment. The Constitution, however, provides that the first members of the Commission shall be appointed
one for nine years, another for six years, and the third for three years. Although the term of a member is nine years,
in my opinion the first appointed after the Constitution had taken effect, cannot be reappointed and their terms
cannot exceed those fixed in their respective appointments.chanroblesvirtualawlibrary chanrobles virtual law library
The first members of the Commission had all faded out of the scene. After the liberation of the Philippines, and
upon reorganization of the Government, and entirely ignoring appointments made before the war, three members
were appointed, and these appointments were treated as though they were the first under the Constitution as clearly
as evidence by the fact that Chairman Jose Lopez Vito was appointed for nine years, member Francisco Enage for
six years, and member Vicente de Vera for three years. These appointments should technically be considered as
original and first appointments under the Constitution if its purpose is to be accomplished. Accordingly, the term of
the respondent De Vera expired in July, 1948. There is of course no legal objection to the appointment of the
respondent as Chairman upon the death of Lopez Vito, but said appointment could not have the effect of extending
his term beyond the 3-year period of his original appointment. The Chairman is also a member, and chairmanship is
indeed not taken into account when the Constitution ordains that "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." Otherwise, the
periodical change contemplated in the Constitution can be avoided by merely rotating the chairmanship among the
three original members. The periodical set-up of the Commission on Elections has a parallel in the Senate. The
Constitution fixes the term of senators at six years, but provides that the first senators elected thereunder shall, in the
manner provided by law, be divided equally into the three groups, the first group to serve for a term of six years, the
second for four years, and the third for two years. None of those first elected, whose terms were fixed by law at two
years, were allowed to continue in office beyond two years, were allowed to continue in office beyond two years,
except of course those who were re-elected, reelection not being prohibited.chanroblesvirtualawlibrary chanrobles
virtual law library
The same consideration that have led this Court to grant necessary relief in G. R. No. L-3452, Nacionalista Party vs.
Angelo Bautista, 1 as Solicitor General of the Philippines, should govern the case at
bar.chanroblesvirtualawlibrary chanrobles virtual law library
Tuason, J., concurs. chanrobles virtual law library
G.R. No. 83896

February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815

February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary
of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor
and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of
National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public
Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE
CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of
Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of
Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and
SOLITA MONSOD, as Head of the National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as
both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C.
Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may, in
addition to his primary position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must
relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary
positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987
Constitution, 2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employment during their

tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in
any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League
of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition
and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist
from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the
1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and
all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute
and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing
Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73,
series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold
other public office, including membership in the boards of government corporations: (a) when directly provided for
in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and
Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary
functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July
25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as
they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par.
(2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate
group of public officers one, the President and her official family, and the other, public servants in general
allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the
prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their
deputies and subalterns, who are the leaders of government expected to lead by example." 7Article IX-B, Section 7,
par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated
and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first
official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section
7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and
that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the
holding of multiple positions which are not related to or necessarily included in the position of the public official
concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the Constitution,
namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section
8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply
and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President,
Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their
deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII,
the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to
become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice
being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public
respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section
13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned
therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar
as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make
the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing
bodies or boards of various government agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created
agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and
other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head
or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices
in government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in
reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on:

Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its
Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations
as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twentytwo (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14);
Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba,
Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten
(10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It
was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition
against the holding of multiple offices or employment in the government subsuming both elective and appointive
public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family
in so far as holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any
other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed
forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7
(2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, VicePresident, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is
absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly
or indirectly, practice any other profession, participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not

similarly imposed on other public officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the
floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found
in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented,
"We actually have to be stricter with the President and the members of the Cabinet because they exercise more
powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in
their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members
of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In
other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the
manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, VicePresident, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment
in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers
of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity
to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the
Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been
chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17Sections bearing on
a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can
be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment.
Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a
positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the VicePresident 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 exofficio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the
primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on
said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no
reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries,
would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair
these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed
as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character, but rather annexed to
the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office,
and without any other appointment or authority than that conferred by the office." 27 An ex-officio member of a
board is one who is a member by virtue of his title to a certain office, and without further warrant or
appointment. 28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is
the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel
Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals
that for the chairman and members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who
does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the representatives from the other offices. No new

appointments are necessary. This is as it should be, because the representatives so designated merely perform duties
in the Board in addition to those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only
be closely related to, but must be required by the official's primary functions. Examples of designations to positions
by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry
Authority 34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview
of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a
member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination
among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these
additional duties and functions being assigned to the President and his official family to sit in the governing bodies
or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required
by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required
by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided
by law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said position. The reason is
that these services are already paid for and covered by the compensation attached to his principal office. It should be
obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officiomember
thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining
policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance,
therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an
honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional
compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add
to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position," 36 express reference to certain high-ranking appointive public officials like
members of the Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not required by current law, membership of certain high-ranking
executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending
the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this
exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took
place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee
Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the article on the Civil
Service Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive
Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading
on August 26, 1986. 41 It was only after the draft Constitution had undergone reformatting and "styling" by the
Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to
the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the
specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the
wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of
Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the
legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par.
2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as
opposed to "allowed," by the primary functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1wphi1Debates in the constitutional convention "are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority
who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force
of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper
interpretation therefore depends more on how it was understood by the people adopting it than in the framers's
understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the
President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure
multiple offices or employment in the government, except in those cases specified in the Constitution itself and as
above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by
law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers)
as examples during the debate and deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the constitution's manifest intent and the people'
understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the
1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the
number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their
primary position to not more than two (2) positions in the government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by

virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required by the primary functions of his office do not
fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect
to other offices or employment held by virtue of legislation, including chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical
consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a
full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be
derived from a department head's ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge
and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos,
Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the
Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries. With respect to the
other named respondents, the petitions have become moot and academic as they are no longer occupying the
positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled
to emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure,officer, a de
facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is
hereby declared null and void and is accordingly set aside.
SO ORDERED.
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.

EVANGELISTA, respondents.

COMMISSION

ON

ELECTIONS

and

JOSEPH

DECISION
HERMOSISIMA, JR., J.:
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 attorneys 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 on
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 petitioners 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 Malaluans protest expenses but also for moral and
exemplary damages and attorneys 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 MunicipaJ 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 Malaluans 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 petitioners right to the
mayoralty seat in his municipality[7] because expiration of the term of office contested in the election protest has the
effect of rendering the same moot and academic.[8]
When the appeal from a decision in an election case has already become moot, the case being an election
protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless
the rendering of a decision on the merits would be of practical value.[9] This rule we established in the case of
Yorac vs. Magalona[10] which we dismissed because it had been mooted by the expiration of the term of office of the
Municipal Mayor of Saravia, Negros Occidental. This was the object of contention between the parties therein. The
recent case of Atienza vs. Commission on Elections,[11] however, squarely presented the situation that is the
exception to that rule.
Comparing the scenarios in those two cases, we-explained:
Second, petitioners 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 petitioners 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 attorneys fees, actual expenses for xerox copies, and
unearned salary and other emoluments from March, 1994 to April, 1995, en mUsse denominated as actual damages,
default in payment by petitioner of which shall result in the collection of said amount from the bond posted by
petitioner on the occasion of the grant of his motion for execution pending appeal in the trial court. Petitioner
naturally contests the propriety and legality of this award upon private respondent on the ground that said damages
have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion in
awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that actual or compensatory damages may be granted in all election
contests or in quo warranto proceedings in accordance with law. [13]COMELEC Rules of Procedure provide that in
all election contests the Court may adjudicate damages and attorneys 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 Cod.e 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 obligor 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, willfully 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;
xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendants 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. x x x[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 courts 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 been
upheld.[19]
In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the general rule is
that the ousted elective official is not obliged to reimburse the emoluments of office that he had received before his
ouster, he would be liable for damages in case he would be found responsible for any unlawful or tortious acts in
relation to his proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led to and
resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he would be answerable
for damages. In that event the salary, fees and emoluments received by or paid to him during his illegal incumbency
would be a proper item of recoverable damage.[20]
The criterion for ajustifiable award of election protest expenses and salaries and emoluments, thus, remains to be the
existence of a pertinent breach of obligations arising from contracts or quasi-contracts, tortious acts, crimes or a
specific legal provision authorizing the money claim in the context of election cases. Absent any of these, we could
not even begin to contemplate liability for damages in election cases, except insofar as attorneys 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, attorneys fees and expenses of litigation, other than judicial costs, cannot
be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest;

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

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just
and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmens compensation and employers 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 attorneys 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 attorneys 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 respondents claim for actual or compensatory damages
in this wise:
x x x 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 requirements 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
ofjudgment pending appeal because the protestees 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 attorneys fees for the new counsel who handled the Appeal and the Petition for
Certiorari before the Court of Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P 1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - 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 x x x - P96,832.00 (up to October 1994 only)

Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation can be recovered (as actual
damages) in the case of clearly unfounded civil action or proceeding.And, while the case of Eulogio Rodriguez,
Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and allowances (as damages) from elected officials
who were later ousted, under the theory that persons elected has (sic) a right to compensation during their
incumbency, the instant case is different. The protestee-appellant was the one elected. He was ousted not by final
judgment but 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 attorneys fees (P3 72,500.00), 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, P3 00,000.00 representing
that portion of attorneys fees denominated as success fee must be deducted this being premised on a contingent
event the happening of which was uncertain from the beginning. Moral damages and exemplary damages claimed
are, of course, disallowed not falling within the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00, the
amount will be assessed, levied and collected from the bond of P500,000.00 which he put up before the Court as a
condition for the issuance of the order of execution of judgment pending appeal.[22]
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The COMELEC en
banc, however, did not find any new matter substantial in nature, persuasive in character or sufficiently provocative
to compel reconsideration of said decision and accordingly affirmed in toto the said decision. Hence, this petition
raises, among others, the issue now solely remaining and in need of final adjudication in view of the mootness of the
other issues anent petitioners right to the contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of
contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither has private
respondent been able to point out to a specific provision of law authorizing a money claim for election protest
expenses against the losing party. [23]
We find respondent COMELECs 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 attorneys fees are concerned,
therefore we find them to have been awarded by respondent COMELEC without basis, the election protest not
having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending appeal to be defective
because of alleged non-compliance with the requirement that there be a good and special reason [24] to justify
execution pending appeal. We, however, find that the trial court acted judiciously in the exercise of its prerogatives
under the law in issuing the order granting execution pending appeal. First, it should be noted that the applicability
of the provisions of the Rules of Court, relating to execution pending appeal, has ceased to be debatable after we
definitively ruled in Garcia vs. de Jesus[25] that Section 2, Rule 39 of the Rules of Court, which allows Regional Trial
Courts to order executions pending appeal upon good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by them. [26] It is not disputed that petitioner filed a bond in the
amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that as much recognition should be given to the value of the decision of a judicial
body as a basis for the right to assume office as that given by law to the proclamation made by the Board of
Canvassers.[27]
x x x 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 x x x 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 x x x the board must act summarily, practically
raising (sic) against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer
and of admittedly better technical preparation and background, apart from his being allowed ample time for
conscientious study and mature deliberation before rendering judgment x x x.[28]
Without evaluating the merits of the trial courts actual appreciation of the ballots contested in the election
protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of
Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus see
no reason to disregard the presumption of regularity in the performance of official duty on the part of the trial court
judge. Capping this combination of circumstances which impel the grant of immediate execution is the undeniable
urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the
COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and justified. Anyway, the bond posted by petitioner
could cover any damages suffered by any aggrieved party. It is true that mere posting of a bond is not enough reason
to justify execution pending appeal, but the nexus of circumstances aforechronicled considered together and in
relation to one another, is the dominant consideration for the execution pending appeal. [29]
Finally, we deem the award of salaries and other emoluments to be improper and lacking legal
sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling in
Rodriguez vs. Tan[30] because while in that case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an order
granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in justifying the award of
damages, that since petitioner was adjudged the winner in the elections only by the trial court and assumed the
functions of the office on the strength merely of an order granting execution pending appeal, the petitioner occupied
the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially
without any color of right,[31] the petitioner exercised the duties of an elective office under color of election
thereto.[32] It matters not that it was the trial court and not the COMELEC that declared petitioner as the winner,
because both, at different stages of the electoral process, have the power to so proclaim winners in electoral
contests. At the risk of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a
judicial body is no less a basis than the proclamation made by the COMELEC-convened Board of Canvassers for a
winning candidates 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 haa 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 ofjudgment 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 Evangalista 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, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Panganiban, JJ., concur.

HON. WALDO Q. FLORES, in his capacity as Senior

Deputy Executive Secretary in the Office of the
President, HON. ARTHUR P. AUTEA, in his
capacity as Deputy Executive Secretary in the Office
of the President, and the PRESIDENTIAL ANTIGRAFT COMMISSION (PAGC),
Petitioners,

- versus -

G.R. No. 170146

Present:
CARPIO MORALES, J.,
Chairperson,
VELASCO, JR.,*
DEL CASTILLO,*
VILLARAMA, JR., and
SERENO, JJ.

Promulgated:
ATTY. ANTONIO F. MONTEMAYOR,
Respondent.
June 8, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
VILLARAMA, JR., J.:
This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the October 19,
2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004 of the Office of the
President in O.P. Case No. 03-1-581, which found the respondent administratively liable for failure to declare in his
2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two expensive cars registered in his name, in
violation of Section 7, Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The OP adopted
the findings and recommendations of the Presidential Anti-Graft Commission (PAGC), including the imposition of
the penalty of dismissal from service on respondent, with all accessory penalties.
The motion is anchored on the following grounds:
1. Respondent was subjected to two (2) administrative/criminal Investigations equivalently
resulting in violation of his constitutional right against double jeopardy.
2. Who to follow between conflicting decisions of two (2) government agencies involving the
same facts and issues affecting the rights of the Respondent.
3. Respondents constitutional right to due process was violated.
4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged offense
committed/omitted.[1]
On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge involving nondeclaration in his 2001 and 2002 SSAL was already the subject of investigation by the Ombudsman in OMB-C-C04-0568-LSC, along with the criminal complaint for unexplained wealth, the former can no longer be pursued
without violating the rule on double jeopardy.
Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4)
when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of the accused. [2] We have held that none of these
requisites applies where the Ombudsman only conducted a preliminary investigation of the same criminal offense
against the respondent public officer.[3] The dismissal of a case during preliminary investigation does not constitute
double jeopardy, preliminary investigation not being part of the trial. [4]
With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the criminal and
administrative complaints against him, including the charge subject of the proceedings before the PAGC and OP. It
is argued that the Office of the Ombudsman as a constitutional body, pursuant to its mandate under R.A. No. 6770,
has primary jurisdiction over cases cognizable by the Sandiganbayan, as against the PAGC which is not a
constitutional body but a mere creation of the OP. Under said law, it is the Ombudsman who has disciplinary
authority over all elective and appointive officials of the government, such as herein respondent.
The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil, administrative and criminal
liabilities. We held in Tecson v. Sandiganbayan[5]:
[I]t is a basic principle of the law on public officers that a public official or employee is under a
three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means
that a public officer may be held civilly, criminally, and administratively liable for a wrongful
doing. Thus, if such violation or wrongful act results in damages to an individual, the public
officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal
sanction, the erring officer may be punished criminally. Finally, such violation may also lead to
suspension, removal from office, or other administrative sanctions. This administrative liability is
separate and distinct from the penal and civil liabilities. (Italics in the original.)
Dismissal of a criminal action does not foreclose institution of an administrative proceeding against the
same respondent, nor carry with it the relief from administrative liability. [6] Res judicata did not set in because there
is no identity of causes of action. Moreover, the decision of the Ombudsman dismissing the criminal complaint
cannot be considered a valid and final judgment. On the criminal complaint, the Ombudsman only had the power to
investigate and file the appropriate case before the Sandiganbayan. [7]
In the analogous case of Montemayor v. Bundalian,[8] this Court ruled:
Lastly, we cannot sustain petitioners stance that the dismissal of similar charges
against him before the Ombudsman rendered the administrative case against him before the
PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate
as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies
only to judicial or quasi-judicial proceedings, not to the exercise of administrative
powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the
acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and
the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee,
was investigated by the PCAGC by virtue of the administrative power and control of the President
over him. As the PCAGCs investigation of petitioner was administrative in nature, the doctrine
ofres judicata finds no application in the case at bar. (Emphasis supplied.)
Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative
complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-declaration in the
SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury
(Article 183, Revised Penal Code, as amended) before the Office of the Ombudsman, respondents objection on
jurisdictional grounds cannot be sustained.
Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on complaints
filed in any form or manner against public officials or employees of the Government, or any subdivision, agency,
instrumentality thereof, including government-owned or controlled corporations. Under Section 13, Article XI, the
Ombudsman is empowered to conduct investigations on his own or upon complaint by any person when such act
appears to be illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate
disciplinary actions against erring public officials and employees.
The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x x (Emphasis supplied.)
Such jurisdiction over public officers and employees, however, is not exclusive.
This power of investigation granted to the Ombudsman by the 1987 Constitution
and The Ombudsman Act is not exclusive but is shared with other similarly authorized
government agencies, such as the PCGG and judges of municipal trial courts and municipal
circuit trial courts. The power to conduct preliminary investigation on charges against public
employees and officials is likewise concurrently shared with the Department of Justice. Despite
the passage of the Local Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians to investigate complaints
against local elective officials.[9] (Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive Order
No. 12 dated April 16, 2001 created the PAGC which was granted the authority to investigate presidential and also
non-presidential employees who may have acted in conspiracy or may have been involved with a presidential
appointee or ranking officer mentioned x x x.[10] On this score, we do not agree with respondent that the PAGC
should have deferred to the Ombudsman instead of proceeding with the administrative complaint in view of the
pendency of his petition for certiorari with the CA challenging the PAGCs jurisdiction. Jurisdiction is a matter of
law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is
terminated.[11]
It may be recalled that at the time respondent was directed to submit his counter-affidavit under the
Ombudsmans Order dated March 19, 2004, the PAGC investigation had long commenced and in fact, the PAGC
issued an order directing respondent to file his counter-affidavit/verified answer as early as May 19, 2003. The rule
is that initial acquisition of jurisdiction by a court of concurrent jurisdiction divests another of its own
jurisdiction.[12] Having already taken cognizance of the complaint against the respondent involving non-declaration
in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents administrative case
notwithstanding the subsequent filing of a supplemental complaint before the Ombudsman charging him with the
same violation.
As to the third ground raised by respondent, we find no merit in his reiteration of the alleged gross violation
of his right to due process. Records bear out that he was given several opportunities to answer the charge against
him and present evidence on his defense, which he stubbornly ignored despite repeated warnings that his failure to
submit the required answer/counter-affidavit and position paper with supporting evidence shall be construed as
waiver on his part of the right to do so.
The essence of due process in administrative proceedings is the opportunity to explain ones side or seek a
reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard
before judgment is rendered, the demands of due process are sufficiently met. [13] What is offensive to due process is
the denial of the opportunity to be heard. [14] This Court has repeatedly stressed that parties who choose not to avail
themselves of the opportunity to answer charges against them cannot complain of a denial of due process. [15] Having
persisted in his refusal to file his pleadings and evidence before the PAGC, respondent cannot validly claim that his
right to due process was violated.
In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the CAs
finding that respondents right to due process was violated by the unilateral investigation conducted by the PAGC
which did not furnish the respondent with a copy of the prejudicial PAGC resolution. The dissent also agreed with
the CAs observation that there was a rush on the part of the PAGC to find the respondent guilty of the charge. This
was supposedly manifested in the issuance by the PAGC of its resolution even without taking into consideration any
explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit
to challenge the PAGCs jurisdiction to investigate him. On the other hand, the dissent proposed that the nonsubmission by respondent of his counter-affidavit or verified answer as directed by the PAGC should not be taken
against him. Respondents refusal was not motivated by bad faith, considering his firm belief that PAGC did not have
jurisdiction to administratively or disciplinarily investigate him.
We do not share this view adopted by the dissent.
Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No. 77285
dismissing respondents petition challenging the jurisdiction of the PAGC. Respondents motion for reconsideration
was likewise denied by the CA. Upon elevation to this Court via a petition for review on certiorari (G.R. No.
160443), the petition suffered the same fate. Under the First Divisions Resolution dated January 26, 2004, the
petition was denied for failure of the petitioner (respondent) to show that the CA committed any reversible error in
the assailed decision and resolution. Said resolution became final and executory on April 27, 2004. Thus, at the time
respondent submitted his counter-affidavit before the Ombudsman on May 21, 2004, there was already a final
resolution of his petition challenging the PAGCs investigative authority.
On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding respondent
guilty as charged and recommending that he be dismissed from the service, after the expiration of the 60-day
temporary restraining order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285. The OP rendered its
Decision adopting the PAGCs findings and recommendation on March 23, 2004. As thus shown, a period of ten (10)
months had elapsed from the time respondent was directed to file his counter-affidavit or verified answer to the
administrative complaint filed against him, up to the rendition of the OPs decision. It cannot therefore be said that
the PAGC and OP proceeded with undue haste in determining respondents administrative guilt.
Still on respondents repeated claim that he was denied due process, it must be noted that when respondent
received a copy of the OP Decision dated March 23, 2004, his petition for review filed in this Court assailing the

CAs dismissal of CA-G.R. SP No. 77285 was already denied under Resolution dated January 26, 2004. However,
despite the denial of his petition, respondent still refused to recognize PAGCs jurisdiction and continued to assail the
same before the CA in CA-G.R. SP No. 84254, a petition for review under Rule 43 from the OPs March 23, 2004
Decision and May 13, 2004 Resolution.[16] In any event, respondent was served with a copy of the OP Decision, was
able to seek reconsideration of the said decision, and appeal the same to the CA.
We also find nothing irregular in considering the investigation terminated and submitting the case for
resolution based on available evidence upon failure of the respondent to file his counter-affidavit or answer despite
giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The PAGC is also
not required to furnish the respondent and complainant copy of its resolution.
The dissent of Justice Bersamin assails the OPs complete reliance on the PAGCs findings and
recommendation which constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court
of Industrial Relations[17]. Among others, it is required that [T]he tribunal or any of its judges must act on its or his
own independent consideration of the facts and the law of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. Justice Bersamin thus concludes that the OP should have itself reviewed and
appreciated the evidence presented and independently considered the facts and the law of the controversy. It was
also pointed out that the OPs statement that the respondents arguments in his Motion for Reconsideration With
Motion For Leave To Admit Explanation/Refutation of Complaint were a mere reiteration of matters previously
considered, was a patent untruth.
We disagree.
The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted the same
with a brief statement preceding the dispositive portion:
After a circumspect study of the case, this Office fully agrees with the recommendation
of PAGC and the legal premises as well as the factual findings that hold it together. Respondent
failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of
the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded
ample opportunity to explain his failure, but he opted to let the opportunity pass by. [18]
The relevant consideration is not the brevity of the above disquisition adopting fully the findings and
recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a court but an
administrative body determining the liability of respondent who was administratively charged, in the exercise of its
disciplinary authority over presidential appointees.
In Solid Homes, Inc. v. Laserna,[19] this Court ruled that the rights of parties in an administrative
proceedings are not violated by the brevity of the decision rendered by the OP incorporating the findings and
conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the constitutional requirement
of due process has been satisfied. Thus:
It must be stated that Section 14, Article VIII of the 1987 Constitution need not apply to
decisions rendered in administrative proceedings, as in the case a[t] bar. Said section applies
only to decisions rendered in judicial proceedings. In fact, Article VIII is titled Judiciary, and all
of its provisions have particular concern only with respect to the judicial branch of
government.Certainly, it would be error to hold or even imply that decisions of executive
departments or administrative agencies are oblige[d] to meet the requirements under Section 14,
Article VIII.
The rights of parties in administrative proceedings are not violated as long as the
constitutional requirement of due process has been satisfied. In the landmark case of Ang
Tibay v. CIR, we laid down the cardinal rights of parties in administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present ones case and
submit evidence in support thereof.
2) The tribunal must consider the evidence presented.
3) The decision must have something to support itself.
4) The evidence must be substantial.
5) The decision must be rendered on the evidence presented at the hearing, or
at least contained in the record and disclosed to the parties affected.
6) The tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the controversy and not
simply accept the views of a subordinate in arriving at a decision.

7)

The board or body should, in all controversial question, render its decision
in such a manner that the parties to the proceeding can know the various
issues involved, and the reason for the decision rendered.
As can be seen above, among these rights are the decision must be rendered on the
evidence presented at the hearing, or at least contained in the record and disclosed to the parties
affected; and that the decision be rendered in such a manner that the parties to the proceedings can
know the various issues involved, and the reasons for the decisions rendered. Note that there is no
requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the
law on which it is based. For as long as the administrative decision is grounded on evidence,
and expressed in a manner that sufficiently informs the parties of the factual and legal bases
of the decision, the due process requirement is satisfied.
At bar, the Office of the President apparently considered the Decision of HLURB as
correct and sufficient, and said so in its own Decision. The brevity of the assailed Decision was
not the product of willing concealment of its factual and legal bases. Such bases, the assailed
Decision noted, were already contained in the HLURB decision, and the parties adversely affected
need only refer to the HLURB Decision in order to be able to interpose an informed appeal or
action for certiorari under Rule 65.
xxxx
Accordingly, based on close scrutiny of the Decision of the Office of the President, this
Court rules that the said Decision of the Office of the President fully complied with both
administrative due process and Section 14, Article VIII of the 1987 Philippine Constitution.
The Office of the President did not violate petitioners right to due process when it
rendered its one-page Decision. In the case at bar, it is safe to conclude that all the parties,
including petitioner, were well-informed as to how the Decision of the Office of the President was
arrived at, as well as the facts, the laws and the issues involved therein because the Office of the
President attached to and made an integral part of its Decision the Decision of the HLURB Board
of Commissioners, which it adopted by reference. If it were otherwise, the petitioner would not
have been able to lodge an appeal before the Court of Appeals and make a presentation of its
arguments before said court without knowing the facts and the issues involved in its
case.[20](Emphasis supplied.)
Since respondent repeatedly refused to answer the administrative charge against him despite notice and
warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by the OP, attaching
the same to his motion for reconsideration. That the OP denied the motion by sustaining the PAGCs findings
without any separate discussion of respondents arguments and belatedly submitted evidence only meant that the OP
found the same lacking in merit and insufficient to overturn its ruling on respondents administrative liability.
On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the service is
justified as no acceptable explanation was given for the non-declaration of the two expensive cars in his 2001 and
2002 SSAL.
Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law proven in a proper
administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if
no criminal prosecution is instituted against him. Respondents deliberate attempt to evade the mandatory disclosure
of all assets acquired during the period covered was evident when he first claimed that the vehicles were lumped
under the entry Machineries/Equipment or still mortgaged, and later averred that these were already sold by the end
of the year covered and the proceeds already spent.
Under this scheme, respondent would have acquired as many assets never to be declared at anytime. Such
act erodes the function of requiring accuracy of entries in the SSAL which must be a true and detailed statement. It
undermines the SSAL as the means to achieve the policy of accountability of all public officers and employees in
the government through which the public are able to monitor movement in the fortune of a public official; [as] a
valid check and balance mechanism to verify undisclosed properties and wealth. [21]
IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH FINALITY.
Let entry of judgment be made in due course.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

G.R. No. 88979 February 7, 1992

LYDIA O. CHUA, petitioner,
vs.
THE CIVIL SERVICE COMMISSION, THE NATIONAL IRRIGATION ADMINISTRATION and THE
DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

PADILLA, J.:
Pursuant to the policy of streamlining and trimming the bureaucracy, Republic Act No. 6683 was approved on 2
December 1988 providing for benefits for early retirement and voluntary separation from the government service as
well as for involuntary separation due to reorganization. Deemed qualified to avail of its benefits are those
enumerated in Sec. 2 of the Act, as follows:
Sec. 2. Coverage. This Act shall cover all appointive officials and employees of the National
Government, including government-owned or controlled corporations with original charters, as
well as the personnel of all local government units. The benefits authorized under this Act shall
apply to all regular, temporary, casual and emergency employees, regardless of age, who have
rendered at least a total of two (2) consecutive years of government service as of the date of
separation. Uniformed personnel of the Armed Forces of the Philippines including those of the
PC-INP are excluded from the coverage of this Act.
Petitioner Lydia Chua believing that she is qualified to avail of the benefits of the program, filed an application on
30 January 1989 with respondent National Irrigation Administration (NIA) which, however, denied the same;
instead, she was offered separation benefits equivalent to one half (1/2) month basic pay for every year of service
commencing from 1980. A recourse by petitioner to the Civil Service Commission yielded negative results. 1 Her
letter for reconsideration dated 25 April 1989 pleaded thus:
xxx xxx xxx
With due respect, I think the interpretation of the Honorable Commissioner of RA 6683 does not
conform with the beneficent purpose of the law. The law merely requires that a government
employee whether regular, temporary, emergency, or casual, should have two consecutive years of
government service in order to be entitled to its benefits. I more than meet the requirement.
Persons who are not entitled are consultants, experts and contractual(s). As to the budget needed,
the law provides that the Department of Budget and Management will shoulder a certain portion of
the benefits to be allotted to government corporations. Moreover, personnel of these NIA special
projects art entitled to the regular benefits, such (sic) leaves, compulsory retirement and the like.
There is no reason why we should not be entitled to RA 6683.
xxx xxx xxx 2
Denying the plea for reconsideration, the Civil Service Commission (CSC) emphasized:
xxx xxx xxx
We regret to inform you that your request cannot be granted. The provision of Section 3.1 of Joint
DBM-CSC Circular Letter No. 89-1 does not only require an applicant to have two years of
satisfactory service on the date of separation/retirement but further requires said applicant to be on
a casual, emergency, temporary or regular employment status as of December 2, 1988, the date of
enactment of R.A. 6683. The law does not contemplate contractual employees in the coverage.

Inasmuch as your employment as of December 31, 1988, the date of your separation from the
service, is co-terminous with the NIA project which is contractual in nature, this Commission shall
sustain its original decision.
xxx xxx xxx 3
In view of such denial, petitioner is before this Court by way of a special civil action for certiorari, insisting that she
is entitled to the benefits granted under Republic Act No. 6683. Her arguments:
It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-CSC Circular Letter No.
89-1 requires an applicant to be on a casual, emergency, temporary or regular employment status.
Likewise, the provisions of Section 23 (sic) of the Joint DBM-CSC Circular Letter No. 88-1,
implementing guidelines of R.A. No. 6683, provides:
"2.3 Excluded from the benefits under R.A. No. 6683 are the following:
a) Experts and Consultants hired by agencies for a limited period to perform
specific activities or services with a definite expected output: i.e. membership in
Task Force, Part-Time, Consultant/Employees.
b) Uniformed personnel of the Armed Forces of the Philippines including those
of the Philippine Constabulary and Integrated National Police (PC-INP).
c) Appointive officials and employees who retire or elect to be separated from
the service for optional retirement with gratuity under R.A. No. 1616, 4968 or
with pension under R.A. No. 186, as amended by R.A. No. 6680 or P.D. No.
1146, an amended, or vice- versa.
d) Officials and employees who retired voluntarily prior to the enactment of this
law and have received the corresponding benefits of that retirement/separation.
e) Officials and employees with pending cases punishable by mandatory
separation from the service under existing civil service laws, rules and
regulations; provided that if such officials and employees apply in writing
within the prescriptive period for the availment of the benefits herein authorized,
shall be allowed only if acquitted or cleared of all charges and their application
accepted and approved by the head of office concerned."
Based on the above exclusions, herein petitioner does not belong to any one of them. Ms. Chua is
a full time employee of NIA entitled to all the regular benefits provided for by the Civil Service
Commission. She held a permanent status as Personnel Assistant A, a position which belongs to
the Administrative Service. . . . If casuals and emergency employees were given the benefit of
R.A. 6683 with more reason that this petitioner who was holding a permanent status as Personnel
Assistant A and has rendered almost 15 years of faithful, continuous service in the government
should be similarly rewarded by the beneficient (sic) purpose of the law. 4
The NIA and the Civil Service Commission reiterate in their comment petitioner's exclusion from the benefits of
Republic Act No. 6683, because:
1. Petitioner's employment is co-terminous with the project per appointment papers kept by the Administrative
Service in the head office of NIA (the service record was issued by the Watershed Management and Erosion Control
Project (WMECP), Pantabangan, Nueva Ecija). The project, funded by the World Bank, was completed as of 31
December 1988, after which petitioner's position became functus officio.

2. Petitioner is not a regular and career employee of NIA her position is not included in its regular plantilla. She
belongs to the non-career service (Sec. 6, P.D. No. 807) which is inherently short-lived, temporary and transient; on
the other hand, retirement presupposes employment for a long period. The most that a non-career personnel can
expect upon the expiration of his employment is financial assistance. Petitioner is not even qualified to retire under
the GSIS law.
3. Assuming arguendo that petitioner's appointment is permanent, security of tenure is available only for the term of
office (i.e., duration of project).
4. The objective of Republic Act No. 6683 is not really to grant separation or retirement benefits but
reorganization 5 to streamline government functions. The application of the law must be made consistent with the
purpose for which it was enacted. Thus, as the expressed purpose of the law is to reorganize the government, it will
not have any application to special projects such as the WMECP which exists only for a short and definite period.
This being the nature of special projects, there is no necessity for offering its personnel early retirement benefits just
to induce voluntary separation as a step to reorganization. In fact, there is even no need of reorganizing the WMECP
considering its short and limited life-span. 6
5. The law applies only to employees of the national government, government-owned or controlled corporations
with original charters and local government units.
Due to the impossibility of reconciling the conflicting interpretations of the parties, the Court is called upon to
define the different classes of employees in the public sector (i.e. government civil servants).
Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492, as amended) deems an employment regular
where the employee has been engaged to perform activities which are usually necessary or desirable in the usual
business or trade of the employer. No equivalent definition can be found in P.D.No. 807 (promulgated on 6 October
1975, which superseded the Civil Service Act of 1965 R.A. No. 2260) or in the Administrative Code of 1987
(Executive Order No. 292 promulgated on 25 July 1987). The Early Retirement Law itself (Rep. Act No. 6683)
merely includes such class of employees (regular employees) in its coverage, unmindful that no such specie is
employed in the public sector.
The appointment status of government employees in the career service is classified as follows:
1. permanent one issued to a person who has met the requirements of the position to which appointment is made,
in accordance with the provisions of the Civil Service Act and the Rules and Standards promulgated in pursuance
thereof; 7
2. temporary In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a
vacancy, a temporary appointment should be issued to a person who meets all the requirements for the position to
which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary
appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service
eligible becomes available. 8
The Administrative Code of 1987 characterizes the Career Service as:
(1) Open Career positions for appointment to which prior qualification in an appropriate
examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature; these include the
faculty and academic staff of state colleges and universities, and scientific and technical positions
in scientific or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief
of Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President.
(4) Career officers, other than those in the Career Executive Service, who are appointed by the
President, such as the Foreign Service Officers in the Department of Foreign Affairs;
(5) Commission officers and enlisted men of the Armed Forces which shall maintain a separate
merit system;
(6) Personnel of government-owned or controlled corporations, whether performing governmental
or proprietary functions, who do not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 9
The Non-Career Service, on the other hand, is characterized by:
. . . (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the
career service; and (2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose employment was made.
Included in the non-career service are:
1. elective officials and their personal or confidential staff;
2. secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the
President and their personal confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;
4. contractual personnel or those whose employment in the government is in accordance with a
special contract to undertake a specific work or job requiring special or technical skills not
available in the employing agency, to be accomplished within a specific period, which in no case
shall exceed one year and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from the hiring agency.
5. emergency and seasonal personnel. 10
There is another type of non-career employee:
Casual where and when employment is not permanent but occasional, unpredictable, sporadic
and brief in nature (Caro v. Rilloroza, 102 Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96 Phil.
945)
Consider petitioner's record of service:
Service with the government commenced on 2 December 1974 designated as a laborer
holdingemergency status with the NIA Upper Pampanga River Project, R & R
Division. 11 From 24 March 1975 to 31 August 1975, she was a research aide

with temporary status on the same project. On 1 September 1975 to 31 December 1976, she was
with the NIA-FES III; R & R Division, then on 1 January 1977 to 31 May 1980, she was with NIA
UPR IIS (Upper Pampanga River Integrated Irrigation Systems) DRD. On 1 June 1980, she
went to NIA W.M.E.C.P. (Watershed Management & Erosion Control Project) retaining the
status of temporary employee. While with this project, her designation was changed to personnel
assistant on 5 November 1981; starting 9 July 1982, the status became permanent until the
completion of the project on 31 December 1988. The appointment paper 12 attached to the OSG's
comment lists her status as co-terminus with the Project.
The employment status of personnel hired under foreign assisted projects is considered co-terminous, that is, they
are considered employees for the duration of the project or until the completion or cessation of said project (CSC
Memorandum Circular No. 39, S. 1990, 27 June 1990).
Republic Act No. 6683 seeks to cover and benefits regular, temporary, casual and emergency employees who have
rendered at least a total of two (2) consecutive years government service.
Resolution No. 87-104 of the CSC, 21 April 1987, provides:
WHEREAS, pursuant to Executive Order No. 966 dated June 22, 1984, the Civil Service
Commission is charged with the function of determining creditable services for retiring officers
and employees of the national government;
WHEREAS, Section 4 (b) of the same Executive Order No. 966 provides that all previous services
by an officer/employee pursuant to a duly approved appointment to a position in the Civil Service
are considered creditable services, while Section 6 (a) thereof states that services rendered
oncontractual, emergency or casual status are non-creditable services;
WHEREAS, there is a need to clarify the aforesaid provisions inasmuch as some contractual,
emergency or casual employment are covered by contracts or appointments duly approved by the
Commission.
NOW, therefore, the Commission resolved that services rendered on contractual, emergency or
casual status, irrespective of the mode or manner of payment therefor shall be considered as
creditable for retirement purposes subject to the following conditions: (emphasis provided)
1. These services are supported by approved appointments, official records
and/or other competent evidence. Parties/agencies concerned shall submit the
necessary proof of said services;
2. Said services are on full time basis and rendered prior to June 22, 1984, the
effectivity date of Executive Order No. 966; and
3. The services for the three (3) years period prior to retirement are continuous
and fulfill the service requirement for retirement.
What substantial differences exist, if any, between casual, emergency, seasonal, project, co-terminous or contractual
personnel? All are tenurial employees with no fixed term, non-career, and temporary. The 12 May 1989 CSC letter
of denial 13 characterized herein petitioner's employment as co-terminous with the NIA project which in turn
was contractual in nature. The OSG says petitioner's status is co-terminous with the Project. CSC Memorandum
Circular No. 11, series of 1991 (5 April 1991) characterizes the status of a co-terminous employee

(3) Co-terminous status shall be issued to a person whose entrance in the service is characterized
by confidentiality by the appointing authority or that which is subject to his pleasure or co-existent
with his tenure.
The foregoing status (co-terminous) may be further classified into the following:
a) co-terminous with the project When the appointment is co-existent with
the duration of a particular project for which purpose employment was made or
subject to the availability of funds for the same;
b) co-terminous with the appointing authority when appointment is coexistent with the tenure of the appointing authority.
c) co-terminous with the incumbent when appointment is co-existent with the
appointee, in that after the resignation, separation or termination of the services
of the incumbent the position shall be deemed automatically abolished; and
d) co-terminous with a specific period, e.g. "co-terminous for a period of 3
years" the appointment is for a specific period and upon expiration thereof,
the position is deemed abolished.
It is stressed, however, that in the last two classifications (c) and (d), what is termed co-terminous
is the position, and not the appointee-employee. Further, in (c) the security of tenure of the
appointee is guaranteed during his incumbency; in (d) the security of tenure is limited to a specific
period.
A co-terminous employee is a non-career civil servant, like casual and emergency employees. We see no solid
reason why the latter are extended benefits under the Early Retirement Law but the former are not. It will be noted
that Rep. Act No. 6683 expressly extends its benefits for early retirement to regular, temporary,
casual andemergency employees. But specifically excluded from the benefits are uniformed personnel of the AFP
including those of the PC-INP. It can be argued that, expressio unius est exclusio alterius. The legislature would not
have made a specific enumeration in a statute had not the intention been to restrict its meaning and confine its terms
and benefits to those expressly mentioned 14 or casus omissus pro omisso habendus est A person, object or thing
omitted from an enumeration must be held to have been omitted intentionally. 15 Yet adherence to these legal
maxims can result in incongruities and in a violation of the equal protection clause of the Constitution.
The case of Fegurin, et al. v. NLRC, et al., 16 comes to mind where, workers belonging to a work pool, hired and rehired continuously from one project to another were considered non-project-regular and permanent employees.
Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a span of fifteen (15) years.
Although no proof of the existence of a work pool can be assumed, her service record cannot be disregarded.
Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of the laws."
. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal protection clause applies
only to persons or things identically situated and does not bar a reasonable classification of the
subject of legislation, and a classification is reasonable where (1) it is based on substantial
distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the
classification applies not only to present conditions but also to future conditions which are
substantially identical to those of the present; (4) the classification applies only to those who
belong to the same class. 17

Applying the criteria set forth above, the Early Retirement Law would violate the equal protection clause were we to
sustain respondents' submission that the benefits of said law are to be denied a class of government employees who
are similarly situated as those covered by said law. The maxim of Expressio unius est exclusio alterius should not be
the applicable maxim in this case but the doctrine of necessary implication which holds that:
No statute can be enacted that can provide all the details involved in its application. There is
always an omission that may not meet a particular situation. What is thought, at the time of
enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding
events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of
statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine
states that what is implied in a statute is as much a part thereof as that which is expressed. Every
statute is understood, by implication, to contain all such provisions as may be necessary to
effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction
which it grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or
privilege is deemed to include all incidental power, right or privilege. This is so because the
greater includes the lesser, expressed in the Maxim, in eo plus sit, simper inest et minus. 18
During the sponsorship speech of Congressman Dragon (re: Early Retirement Law), in response to Congressman
Dimaporo's interpellation on coverage of state university employees who are extended appointments for one (1)
year, renewable for two (2) or three (3) years, 19 he explained:
This Bill covers only those who would like to go on early retirement and voluntary separation. It is
irrespective of the actual status or nature of the appointment one received, but if he opts to retire
under this, then he is covered.
It will be noted that, presently Pending in Congress, is House Bill No. 33399 (a proposal to extend the scope of the
Early Retirement Law). Its wording supports the submission that Rep. Act No. 6683 indeed overlooked a qualified
group of civil servants. Sec. 3 of said House bill, on coverage of early retirement, would provide:
Sec. 3. Coverage. It will cover all employees of the national government, including
government-owned or controlled corporations, as well as the personnel of all local government
units. The benefits authorized under this Act shall apply to all regular, temporary,
casual, emergency and contractual employees, regardless of age, who have rendered at least a total
of two (2) consecutive years government service as of the date of separation. The term
"contractual employees" as used in this Act does not include experts and consultants hired by
agencies for a limited period to perform specific activities or services with definite expected
output.
Uniformed personnel of the Armed Forces of the Philippines, including those of the PC-INP are
excluded from the coverage of this Act. (emphasis supplied)
The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy, hence, vacated
positions are deemed abolished upon early/voluntary retirement of their occupants. Will the inclusion of coterminous personnel (like the petitioner) defeat such objective? In their case, upon termination of the project and
separation of the project personnel from the service, the term of employment is considered expired, the officefunctus
officio. Casual, temporary and contractual personnel serve for shorter periods, and yet, they only have to establish
two (2) years of continuous service to qualify. This, incidentally, negates the OSG's argument that co-terminous or
project employment is inherently short-lived, temporary and transient, whereas, retirement presupposes employment
for a long period. Here, violation of the equal protection clause of the Constitution becomes glaring because casuals
are not even in the plantilla, and yet, they are entitled to the benefits of early retirement. How can the objective of
the Early Retirement Law of trimming the bureaucracy be achieved by granting early retirement benefits to a group
of employees (casual) without plantilla positions? There would, in such a case, be no abolition of permanent

positions or streamlining of functions; it would merely be a removal of excess personnel; but the positions remain,
and future appointments can be made thereto.
Co-terminous or project personnel, on the other hand, who have rendered years of continuous service should be
included in the coverage of the Early Retirement Law, as long as they file their application prior to the expiration of
their term, and as long as they comply with CSC regulations promulgated for such purpose. In this connection,
Memorandum Circular No. 14, Series of 1990 (5 March 1990) implementing Rep. Act No. 6850, 20 requires, as a
condition to qualify for the grant of eligibility, an aggregate or total of seven (7) years of government service which
need not be continuous, in the career or non-career service, whether appointive, elective, casual, emergency,
seasonal, contractualor co-terminous including military and police service, as evaluated and confirmed by the Civil
Service Commission. 21 A similar regulation should be promulgated for the inclusion in Rep. Act No. 6683 of coterminous personnel who survive the test of time. This would be in keeping with the coverage of "all social
legislations enacted to promote the physical and mental well-being of public servants" 22 After all, co-terminous
personnel, are also obligated to the government for GSIS contributions, medicare and income tax payments, with the
general disadvantage of transience.
In fine, the Court believes, and so holds, that the denial by the respondents NIA and CSC of petitioner's application
for early retirement benefits under Rep. Act No. 6683 is unreasonable, unjustified, and oppressive, as petitioner had
filed an application for voluntary retirement within a reasonable period and she is entitled to the benefits of said law.
While the application was filed after expiration of her term, we can give allowance for the fact that she originally
filed the application on her own without the assistance of counsel. In the interest of substantial justice, her
application must be granted; after all she served the government not only for two (2) years the minimum
requirement under the law but for almost fifteen (15) years in four (4) successive governmental projects.
WHEREFORE, the petition is GRANTED.
Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's application for early retirement
benefits under Rep. Act No. 6683, in accordance with the pronouncements in this decision.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero and Nocon, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur but only insofar as our rulings are applied to RA 6683 applicants.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur but only insofar as our rulings are applied to RA 6683 applicants.

G.R. No. 160427. September 15, 2004]

POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG

MASCARA, petitioners, vs. COMMISSION ON ELECTIONS and EO ESMAEL MAULAY, Acting
Election Officer, Tamparan, Lanao del Sur or whoever is acting on his behalf, respondents.
DECISION
CARPIO, J.:
The Case
Challenged in this petition for certiorari[1] with prayer for temporary restraining order and preliminary
injunction is the Resolution of the Commission on Elections en banc (COMELEC)[2]dated 8 October 2003. The
COMELEC declared a failure of election but refused to conduct another special election.
The Facts
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections (elections), Polala
Sambarani (Sambarani), Jamal Miraato (Miraato), Samera Abubacar (Abubacar), Macabigung Mascara (Mascara)
and Aliasgar Dayondong (Dayondong) ran for re-election as punong barangay in their respective barangays,
namely: Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South (five
barangays), all in Tamparan, Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued Resolution No. 5479
setting special elections on 13 August 2002 in the affected barangays in Lanao del Sur including the five
barangays. On 14 August 2002, Acting Election Officer Esmael Maulay (EO Maulay) issued a certification that
there were no special elections held on 13 August 2002.
Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong (joint-petitioners) filed a Joint Petition
seeking to declare a failure of elections in the five barangays and the holding of another special election. The Joint
Petition attributed the failure of the special elections to EO Maulays non-compliance with COMELEC
Commissioner Mehol K. Sadains (Commissioner Sadain) directive. Commissioner Sadain had directed EO Maulay
to use the Autonomous Region of Muslim Mindanao (ARMM) 2001 computerized Voters List and the Voters
Registration Records of the Provincial Election Officer during the December 2001 registration of new voters.
The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In the 1 October
2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel appeared. The COMELEC ordered
the parties to submit their memoranda within 20 days. The COMELEC also directed EO Maulay to explain in
writing why he should not be administratively charged for failing to comply with Commissioner Sadains directive.
The joint-petitioners filed their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a
written explanation as directed. The COMELEC considered the case submitted for resolution.
On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:
ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to proceed with the
appointment of Barangay Captains and Barangay Kagawads as well as SK Chairmen and SK Kagawads in
Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud,

all of Tamparan, Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, and other related laws on the matter.
Let a copy of this Resolution be furnished to the Department of Interior and Local Government, the Municipality of
Tamparan, Lanao [d]el Sur, and the respective Sangguniang Barangays of Barangays Occidental Linuk, Pindolonan
Moriatao Sarip, Talub, Tatayawan South and New Lumbacaingud, of Tamparan.
Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary Investigation of
Respondent ESMAEL MAULAY for possible commission of election offense/s, and consequently, the filing of
administrative charges against him if warranted.
SO ORDERED.[3]
Sambarani, Miraato, Abubacar and Mascara (petitioners) filed the instant petition. [4]
The COMELECs Ruling
The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the five barangays
failed. The COMELEC, however, ruled that to hold another special election in these barangays as prayed for by
petitioners is untenable. The COMELEC explained that it is no longer in a position to call for another special
election since Section 6 of the Omnibus Election Code provides that special elections shall be held on a date
reasonably close to the date of the election not held, but not later than thirty days after cessation of the cause of such
postponement. The COMELEC noted that more than thirty days had elapsed since the failed election.
The COMELEC also pointed out that to hold another special election in these barangays will not only be
tedious and cumbersome, but a waste of its precious resources. The COMELEC left to the Department of Interior
and Local Government (DILG) the process of appointing the Barangay Captains and Barangay Kagawads as well as
the Sangguniang Kabataan (SK) Chairmen and SK Kagawads in these barangays in accordance with the Local
Government Code of 1991 and other related laws on the matter. [5]
The Issues
Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction
in
1. Denying the prayer to call for another special election in barangays Occidental Linuk, Pindolonan
Moriatao Sarip, Talub, New Lumbacaingud (subject barangays);
2. Directing the DILG to proceed with the appointment of the barangay captains, barangay kagawads, SK
chairmen and SK kagawads in the subject barangays;
3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office until their
successors have been elected and qualified.
The Courts Ruling
The petition is meritorious.
First Issue: Whether To Call Another Special Election
Petitioners fault the COMELEC for not holding another special election after the failed 13 August 2002 special
election. Petitioners insist that the special barangay and SK elections in the subject barangays failed because EO
Maulay did not use the voters list used during the 2001 ARMM elections. Neither did Maulay segregate and
exclude those voters whose Voters Registration Records (VRRs) were not among those 500 VRRs bearing serial

numbers 00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from the
certified list of candidates the name of disqualified candidate Candidato Manding. Petitioners contend that
COMELECs refusal to call another special election conflicts with established jurisprudence, specifically the ruling
in Basher v. Commission on Elections.[6]
The Solicitor General supports the COMELECs stance that a special election can be held only within thirty
days after the cause of postponement or failure of election has ceased. The Solicitor General also maintains that the
DILG has the power to appoint and fill vacancies in the concerned elective barangay and SK offices.
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall. Indisputably, the text and intent of this constitutional provision is to give COMELEC all
the necessary and incidental powers for it to achieve its primordial objective of holding free, orderly, honest,
peaceful and credible elections.[7]
The functions of the COMELEC under the Constitution are essentially executive and administrative in nature.
It is elementary in administrative law that courts will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of activities coming under the special technical
knowledge and training of such agencies.[8] The authority given to COMELEC to declare a failure of elections and
to call for special elections falls under its administrative function. [9]
The marked trend in our laws has been to grant the COMELEC ample latitude so it can more effectively
perform its duty in safeguarding the sanctity of our elections. But what if, as in this case, the COMELEC refuses to
hold elections due to operational, logistical and financial problems? Did the COMELEC gravely abuse its discretion
in refusing to conduct a second special Barangay and SK elections in the subject barangays?
Neither the candidates nor the voters of the affected barangays caused the failure of the special elections. The
COMELECs own acting election officer, EO Maulay, readily admitted that there were no special elections in these
barangays. The COMELEC also found that the Provincial Election Supervisor of Lanao del Sur and the Regional
Election Director of Region XII did not contest the fact that there were no special elections in these barangays.
An election is the embodiment of the popular will, the expression of the sovereign power of the people. [10] It
involves the choice or selection of candidates to public office by popular vote. [11] The right of suffrage is enshrined
in the Constitution because through suffrage the people exercise their sovereign authority to choose their
representatives in the governance of the State. The fact that the elections involved in this case pertain to the lowest
level of our political organization is not a justification to disenfranchise voters.
COMELEC anchored its refusal to call another special election on the last portion of Section 6 of the Omnibus
Election Code ( Section 6) which reads:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous cases the
election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law
for the closing of the voting, or after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the
failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect. (Emphasis
supplied)
The Court construed Section 6 in Pangandaman v. COMELEC,[12] as follows
In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30)
days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.]
it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect.
The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a
case. Thus, the holding of elections within the next few months from the cessation of the cause of the

postponement, suspension or failure to elect may still be considered reasonably close to the date of the
election not held. (Emphasis supplied)
The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure
of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct
special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot defeat the right of
suffrage of the people as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in
Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special elections to enable
the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special
elections when the same cannot be reasonably held within the period prescribed by law.
More in point is Section 45 of the Omnibus Election Code (Section 45) which specifically deals with the
election of barangay officials. Section 45 provides:
SEC. 45. Postponement or failure of election. When for any serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the
holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a
verified petition of an interested party and after due notice and hearing at which the interested parties are given equal
opportunity to be heard, shall postpone the election therein for such time as it may deem necessary.
If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay
has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the
voting therein and such failure or suspension of election would affect the result of the election, the Commission, on
the basis of a verified petition of an interested party, and after due notice and hearing, at which the interested
parties are given equal opportunity to be heard shall call for the holding or continuation of the election within
thirty days after it shall have verified and found that the cause or causes for which the election has been
postponed or suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in
the barangay concerned.
When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty
percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which
was postponed or suspended. (Emphasis supplied)
Unlike Section 6, Section 45 does not state that special elections should be held on a date reasonably close to
the date of the election not held. Instead, Section 45 states that special elections should be held within thirty days
from the cessation of the causes for postponement. Logically, special elections could be held anytime, provided the
date of the special elections is within thirty days from the time the cause of postponement has ceased.
Thus, in Basher[13] the COMELEC declared the 27 May 1997 barangay elections a failure and set special
elections on 12 June 1997 which also failed. The COMELEC set another special election on 30 August 1997 which
this Court declared irregular and void. On 12 April 2000, this Court ordered the COMELEC to conduct a special
election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible. This despite the provision in
Section 2[14] of Republic Act No. 6679 (RA 6679)[15] stating that the special barangay election should be held in all
cases not later than ninety (90) days from the date of all the original election.
Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it would not be
as pressed for time as it is now. The operational, logistical and financial problems which COMELEC claims it will
encounter with the holding of a second special election can be solved with proper planning, coordination and
cooperation among its personnel and other deputized agencies of the government. A special election will require
extraordinary efforts, but it is not impossible. In applying election laws, it would be better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms. [16] In any event, this Court had already held
that special elections under Section 6 would entail minimal costs because it covers only the precincts in the affected
barangays.[17]
In this case, the cause of postponement after the second failure of elections was COMELECs refusal to hold a
special election because of (1) its erroneous interpretation of the law, and (2) its perceived logistical, operational and
financial problems. We rule that COMELECs reasons for refusing to hold another special election are void.

Second and Third Issues: Whether the DILG may Appoint

the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to proceed with the
appointment of Barangay Captains and Barangay Kagawads as well as SK chairmen and SK Kagawads in the four
barangays. Petitioners argue that as the incumbent elective punong barangays in the four barangays,[18] they should
remain in office in a hold- over capacity until their successors have been elected and qualified. Section 5 of
Republic Act No. 9164 (RA 9164) [19] provides:
Sec. 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials shall remain in office
unless sooner removed or suspended for cause until their successors shall have been elected and qualified. The
provisions of the Omnibus Election Code relative to failure of elections and special elections are hereby reiterated in
this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of office of barangay
and SK officials, and provides for the qualifications of candidates and voters for the SK elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court to apply the
plain meaning of the language of Section 5. Since there was a failure of elections in the 15 July 2002 regular
elections and in the 13 August 2002 special elections, petitioners can legally remain in office as barangay chairmen
of their respective barangays in a hold-over capacity. They shall continue to discharge their powers and duties
as punong barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local
Government Code limits the term of elective barangay officials to three years. However, Section 5 of RA 9164
explicitly provides that incumbent barangay officials may continue in office in a hold over capacity until their
successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that [A]ll incumbent barangay officials
xxx shall remain in office unless sooner removed or suspended for cause xxx until their successors shall have been
elected and qualified. Section 8 of the same RA 6679 also states that incumbent elective barangay officials running
for the same office shall continue to hold office until their successors shall have been elected and qualified.
The application of the hold-over principle preserves continuity in the transaction of official business and
prevents a hiatus in government pending the assumption of a successor into office. [20] As held in Topacio Nueno v.
Angeles,[21] cases of extreme necessity justify the application of the hold-over principle.
WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections dated 8
October 2003 is declared VOID except insofar as it directs its Law Department to conduct a preliminary
investigation of Esmael Maulay for possible commission of election offenses. Petitioners have the right to remain in
office as barangay chairmen in a hold-over capacity until their successors shall have been elected and qualified. The
Commission on Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within thirty (30) days from
finality of this decision.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Carpio-Morales, J., on official leave.
Chico-Nazario, J., on leave.
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner,
vs.
CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.
Provincial Attorney for respondent.

RESOLUTION

DAVIDE, JR., J.:p

Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a verified complaint with the Civil
Service Commission to denounce a violation by an appointing authority of the Civil Service Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980,
appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career
service position which belongs to the personal and confidential staff of an elective official. 1
On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of
Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the
Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator
effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the
designation is earlier revoked. 2
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which
the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4 to bring to its
attention the "appointment" of Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his
brother. He alleges therein that: (1) the position in question is a career position, (2) the appointment violates civil
service rules, and (3) since the Governor authorized said appointee to receive representation allowance, he violated
the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated.
In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros, Acting
Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the
provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Senior
Executive Assistant and Civil Security Officer, both are primarily confidential in nature; and, with respect to the
position of Provincial Administrator:
. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career
Civil Service position, like that of a provincial administrator. Governor Laurel did not appoint his
brother, Benjamin, as Provincial Administrator. He merely designated him "Acting Provincial
Administrator." And "appointment" and "designation" are two entirely different things.
Appointment implies original establishment of official relation. Designation is the imposition of
new or additional duties upon an officer to be performed by him in a special manner. It
presupposes a previous appointment of the officer in whom the new or additional duties are
imposed.

Appointment is generally permanent, hence the officer appointed cannot be removed except for
cause; designation is merely temporary and the new or additional powers may be withdrawn with
or without cause.
Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the
Governor when Governor Laurel designated him Acting Provincial Administrator.
It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:
As Acting Provincial Administrator, Benjamin is entitled under Office of the President
Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance of P350.00.
And said allowance is "strictly on reimbursement basis." 6
On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358 7 which, inter
alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground that it is "nepotic", or in
violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:
SECTION 49. Nepotism. (a) All appointments in the national, provincial, city and municipal
governments or in any branch or instrumentality thereof, including government-owned or
controlled corporations, made in favor of a relative of the appointing or recommending authority,
or of the chief of the bureau or office, or of the persons exercising immediate supervision over
him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed
in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of
the Philippines: Provided, however, That in each particular instance full report of such
appointment shall be made to the Commission.
xxx xxx xxx
Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service
Commission ruled that "the prohibitive mantle on nepotism would include designation, because what cannot be done
directly cannot be done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides that no
person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly
belonging to any position in the competitive service (now career service). The petitioner, therefore, could not legally
and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant
and Civil Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No.
5185.
Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is primarily
confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil
Service Commission maintains that said position is not primarily-confidential in nature since it neither belongs to
the personal staff of the Governor nor are the duties thereof confidential in nature considering that its principal
functions involve general planning, directive and control of administrative and personnel service in the Provincial
Office, petitioner filed the instant petition invoking the following grounds:
A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or
excess of jurisdiction when it held that the position of provincial administrator is not a primarilyconfidential position because said ruling is diametrically opposed to, and in utter disregard of

rulings of this Honorable Court as to what is a primarily-confidential position under Article XII-B,
Sec. 2 of the Constitution.
B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it
arrogated unto itself the power to review a designation made by petitioner by virtue of the powers
in him vested under Section 2077 of the Revised Administrative Code.
C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of
private respondent and thereafter promulgated the resolutions under question in this petition.
D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of
law available to petitioner to have the questioned resolutions of respondent Commission reviewed
and thereafter nullified, revoked and set aside, other than this recourse to a petition
for certiorariunder Rule 65 of the Rules of Court.
In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains the
challenged resolutions and contends that the position of Provincial Administrator is intended to be part of the career
system and since it requires a specific civil service eligibility, it belongs to the career service under Section 5(1) of
P.D. No. 807 and has not been declared primarily confidential by the President pursuant to Section 1 of P.D. No.
868; that the Commission has the authority to review, disapprove, and set aside even meredesignations, as
distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce the laws and rules
governing the selection, utilization, training and discipline of civil servants; and that it can act on Sangalang's
complaint pursuant to Section 37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an
administrative complaint to correct a violation of the Civil Service law and rules which involved public service and
the public interest. Per Benitez vs. Paredes, 10 reiterated in Taada vs.
Tuvera, 11 where the question is one of public right, the people are regarded as the real parties in interest, and the
relator at whose instigation the proceedings are instituted need only show that he is a citizen and as such interested
in the execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties, functions and
responsibilities of the Provincial Administrator render said position primarily confidential in nature; the requirement
of a specific service eligibility and absence of a presidential declaration that the position is primarily confidential do
not place the said position in the career service; the position of Provincial Administrator is in the non-career service;
and that the Benitez vs. Paredes and Taada vs. Tuvera cases are not applicable in this case. Petitioner insists that
the controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court held that there are two
instances when a position may be considered primarily confidential, to wit: (a) when the President, upon
recommendation of the Commissioner of Civil Service (now Civil Service Commission) has declared a position to
be primarily confidential; and (2) in the absence of such declaration, when by the very nature of the functions of the
office, there exists close intimacy between the appointee and the appointing power which insures freedom of
intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or confidential matters
of state and Piero vs. Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959 Civil
Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a position is primarily
confidential, policy determining, or highly technical and that executive pronouncements can be no more than initial
determinations that are not conclusive in case of conflict, which must be so, or else "it would then lie within the
discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII of
the Constitution."
In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in
the Salazar and Pierocases have been modified and superseded by Section 6 of P.D. No. 807, and by the third
paragraph of Section 1 of P.D. No. 868, which provides:
Any provision of law authorizing any official, other than the President, to declare positions policydetermining, primarily confidential or highly technical which are exempt from the Civil Service
Law and rules is hereby repealed, and only the President may declare a position-determining,

highly technical or primarily confidential, upon recommendation of the Civil Service Commission,
the Budget Commission and the Presidential Reorganization Commission.
The Solicitor General further asseverates that the Commissions' giving due course to the complaint of Sangalang is
manifestly valid and legal for it is also in accordance with the declared policies of the State provided for in Section 2
of P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties to submit
simultaneous memoranda.
We shall take up the issues in the order they are presented above.
1. The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D.
No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner did not raise it in the
letter to the Chairman of the Civil Service Commission dated 18 January 1983. 14
On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it
belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:
At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is
theappointment of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL
ADMINISTRATOR . . . (capitalization supplied for emphasis).
The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not
apply to designation only to appointment. He changed his mind only after the public respondent, in its Resolution
No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done
directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said
resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil
Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot
be denied or disproved as against the person relying thereon. 15
But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial
Administrator is primarily confidential, is without merit.
As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator
is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed
for it in the Manual of Position Descriptions, 16 to wit:
Education : Bachelor's degree preferably in Law/Public or Business Administration.
Experience : Six years of progressively responsible experience in planning, directing and
administration of provincial government operations. Experience in private agencies considered are
those that have been more or less familiar level of administrative proficiency.
Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First
Grade/Supervisor).
It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual,
thus:
xxx xxx xxx
2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the
activities of the various national and local agencies in the province; and general planning,
direction and control of the personnel functions and the administrative services of the Governor's
Office.
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level management, administrative and organizational work in
the operation of provincial government with highly complex, involved relationships with
considerable delegation of authority and responsibility and a high degree of public contact.
render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of
P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher
career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it
requires prior qualification in an appropriate examination. 17 It falls within the second major level of positions in the
career service, per Section 7 of P.D. No. 807, which reads:
Sec. 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service
appointment to which requires examinations shall be grouped into three major levels as follows:
xxx xxx xxx
(2) The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at
least four years of college work up to Division Chief level; . . .
In Piero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:
It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is
the natureof the position which finally determines whether a position is primarily confidential,
policy determining or highly technical. Executive pronouncements can be no more than initial
determinations that are not conclusive in case of conflict. And it must be so or else it would then
lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII 19 of the Constitution.
This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:
. . . and only the President may declare a position policy-determining, highly technical or primarily
confidential, upon recommendation of the Civil Service Commission, the Budget Commission and
the Presidential Reorganization Commission.
for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case
forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may
be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the
civil service under the 1973 Constitution which was then in force at the time the decree was promulgated.
Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policydetermining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it
is the natureof the position which finally determines whether it falls within the above mentioned classification. The
1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which
arepolicy-determining, primarily confidential, or highly technical."

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20 that Salazar vs.
Mathay 21 and Piero, et al. vs. Hechanova, et al., 22 have already been modified by Section 6 of P.D. No. 807 and
the third paragraph of Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism.
We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel
of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he
was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential
position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions
belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent,
petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career
position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the noncompetitive service (now non-career) shall perform the duties properly belonging to any position in the competitive
service (now career service).
2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of
P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets
all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the
absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary
appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil
service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service eligible becomes available. 23
Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the
prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity
and the case does not fall within any of the exemptions provided therein.
Petitioner, however, contends that since what he extended to his brother is not an appointment, but a
DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:
By legal contemplation, the prohibitive mantle on nepotism would include designation, because
what cannot be done directly cannot be done indirectly. 24
We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is
nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch
maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and
designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate"
means "to indicate, select, appoint or set apart for a purpose or duty. 25
In Borromeo vs. Mariano, 26 this Court said:
. . . All the authorities unite in saying that the term "appoint" is well-known in law and whether
regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of
an individual . . . (emphasis supplied).
In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding of
the term. However, where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced at will by the

appointing authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if
a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the
prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely
designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service.
Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 28
3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public
respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his
brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of
the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set
standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil
servants, 29 with the power and function to administer and enforce the Constitutional and statutory provisions on the
merit system. 30 Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil
Service Commission a complaint against a government official or employee, in which case it may hear and decide
the case or may deputize any department or agency or official or group of officials to conduct an investigation. The
results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be
imposed or other action to be taken. This provision gives teeth to the Constitutional exhortation that a public office
is a public trust and public officers and employees must at all times be, inter alia, accountable to the people. 31 An
ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or
employee which betrays the public interest deserves nothing less than the praises, support and encouragement of
society. The vigilance of the citizenry is vital in a democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service
Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Romero, JJ., concur.

G.R. No. 111471 September 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,
vs.
CIVIL SERVICE COMMISSION, respondent.
Marlon P. Ontal for petitioners.

FELICIANO, J.:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1
October 1992, petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer,
that is, as head of the Office of General Services 1 of the City Government of San Carlos.
Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of
General Services Officer. Before her promotion in 1992, she had been in the service of the City Government for
about thirty-two (32) years. She joined the City Government on 3 January 1961 as Assistant License Clerk. Through
the years, she rose from the ranks, successively occupying the following positions:
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;
(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;
(c) Cashier, from 2 January 1981 to 30 June 1989; and
(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2
On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions,
of General Services Officer of San Carlos City and receiving the regular salary attached to that position.
On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3 from
Congressman Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to the promotional
appointment issued by petitioner Mayor in favor of his wife.
The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner
Victoria.
From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that
petitioner Mayor was the lawful husband of the appointee, petitioner Victoria, the two (2) having been married
sometime in 1964. Director Caberoy also reported that the appointment papers prepared by the Office of the City
Mayor of San Carlos were submitted to the Bacolod City CSC-Field Office on 28 October 1992, and that the
appointment was thereafter approved by Director Purita H. Escobia of that CSC-Field Office, on 18 November
1992.
Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April 1993,
recalled the approval issued by Director Escobia and disapproved the promotion of petitioner Victoria to the position
of General Services Officer of San Carlos City upon the ground that that promotion violated the statutory prohibition
against nepotic appointments.
On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of the
Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition against nepotism was
not applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the
Commission had deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment.
The motion for reconsideration was denied by the Commission on 21 July 1993.
In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely
abused its discretion in withdrawing and disapproving petitioner Victoria's promotional appointment. Petitioners
assert that Victoria can no longer be removed from the position of General Services Officer without giving her an
opportunity to be heard and to answer the charged of nepotism.
Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post.
He states that his wife was the most qualified among the candidates for appointment to that position, she having
worked for the City Government for thirty-two (32) years and being highly recommended by the OIC-Treasurer of

San Carlos City. 5 It is also claimed by petitioner Mayor that his choice of his wife for the position was concurred in
by the Sangguniang Panglungsod. 6 He further avers that he had consulted the Field and Regional Officers of the
Commission in Bacolod City, and raised the question of applicability of the prohibition against nepotism to the then
proposed promotion of his wife in one of the seminars conducted by the Commission's Regional Office held in San
Carlos City on 21 and 22 September 1992. According to petitioner Mayor, one Gregorio C. Agdon, a supervising
personnel specialist in the Commission's Bacolod Office, informed him that the promotional appointment was not
covered by the prohibition. 7
The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original
appointments and not to promotional appointments. They believe that because petitioner Victoria was already in the
service of the City Government before she married petitioner Mayor, the reason behind the prohibition no longer
applied to her promotional appointment. Petitioners also affirm that petitioner Victoria deserves to be promoted to
General Services Officer, considering her long and faithful service to the City Government. 8
The task before this Court is, accordingly, two-fold:
(1) to determine whether a promotional appointment is covered by the legal prohibition against
nepotism, or whether that prohibition applies only to original appointments to the Civil Service;
and
(2) to determine whether the Commission had gravely abused its discretion in recalling and
disapproving the promotional appointment given to petitioner Victoria after the Commission,
through Director Escobia, had earlier approved that same appointment, without giving an
opportunity to petitioner Victoria to explain her side on the matter.
I
The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised
Administrative Code of 1987 (also known as E.O. No. 292). Section 59 reads as follows:
Sec. 59. Nepotism (1) All appointments in the national, provincial, city and
municipal governmentsor in any branch or instrumentality thereof, including government-owned
or controlled corporations,made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of the persons exercising
immediate supervision over him, are hereby prohibited.
As used in this Section the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed
in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of
the Philippines: Provided, however, That in each particular instance full report of such
appointment shall be made to the Commission.
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any
family who, after his or her appointment to any position in an office or bureau, contracts marriage
with someone in the same office or bureau, in which event the employment or retention therein of
both husband and wife may be allowed.
(3) In order to give immediate effect to these provisions, cases of previous appointment which are
in contravention hereof shall be corrected by transfer and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives who were appointed in
violation of these provisions. (Emphasis supplied).

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and other
Pertinent Civil Service Laws," issued on 27 December 1991, implementing, among other things, the abovequoted
Section 59, provides as follows:
Sec. 6. No appointments in the national, provincial, city and municipal government or in any
branch or instrumentality thereof, including government-owned or controlled corporations with
original charters shall be made in favor of a relative of the appointing or recommending authority,
or of the chief of the bureau or office, or of the persons exercising immediate supervision over the
appointee.
Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the
members of the family referred to are those related within the third degree either of consanguinity
or of affinity.
The following are exempted from the operation of the rules on nepotism: (a) persons employed in
a confidential capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the
Philippines. Provided, however, That in each particular instance full report of such appointment
shall be made to the Commission.
The restriction mentioned in the first paragraph of this Section shall not be applicable to the case
of a member of any family who after his or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed.
Cases of previous appointment which are in contravention hereof shall be corrected by transfer,
and pending such transfer no promotion or salary increase shall be allowed in favor of the relative
or relatives who were appointed in violation of these provisions. (Emphasis supplied)
It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the
provisions of Section 59, Book V of E.O. No. 292. 9
We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy fact may be
pointed out, at the outset, that Section 59 as it exists today has been in our statute books in substantially identical
form and language for at least thirty (30) years. 10
A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified
terms. Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing
kinds or types of appointments. Secondly, Section 59 covers all appointments to
the national, provincial,city and municipal government, as well as any branch or instrumentality thereof and
all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself,
but it is a short list:
(a) persons employed in a confidential capacity;
(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.
The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain
words like "and other similar positions." Thus, the list appears to us to be a closed one, at least closed until
lengthened or shortened by Congress.

Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus Implementing Rules.
Additional light is shed on the issue we here address by some provisions of these Rules. Section 1, Rule V of the
Omnibus Implementing Rules reads as follows:
Sec. 1. All appointments in the career service shall be made only according to merit and fitness to
be determined as far as practicable by competitive examinations.
As used in these Rules, any action denoting movement or progress of personnel in the civil
serviceshall be known as personnel action. Such action shall include promotion, transfer,
reinstatement, reemployment, detail, secondment, reassignment, demotion and separation. All
original appointments and personnel actions shall be in accordance with these Rules and with
other regulations and standards that may be promulgated by the Commission. (Emphasis
supplied)
Section 1, Rule VII of the same Rules also bears upon our inquiry:
Sec. 1. The following constitute personnel actions: original appointment, appointment through
certification, promotion, transfer, reinstatement, reemployment, detail, secondment, demotion and
separation. (Emphasis supplied)
Under the abovequoted provisions of the Implementing Rules, both an original appointment and a promotion are
particular species of personnel action. The original appointment of a civil service employee and all subsequent
personnel actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement,
reemployment, etc., must comply with the Implementing Rules including, of course, the prohibition against
nepotism in Rule XVIII. To the extent that all personnel actions occurring after an original appointment, require the
issuance of a new appointment to another position (or to the original position in case of reinstatement), we believe
that such appointment must comply with all applicable rules and prohibitions, including the statutory and regulatory
prohibition against nepotism. To limit the thrust of the prohibition against nepotism to the appointment issued at the
time of initial entry into the government service, and to insulate from that prohibition appointments subsequently
issued when personnel actions are thereafter taken in respect of the same employee, would be basically to render that
prohibition, in the words of Laurel V, etc. v. Civil Service Commission, 11 "meaningless and toothless."
Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that
prohibition was intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic policy
which pervades all the provisions of our Civil Service law, including Section 59 thereof:
Sec. 1. Declaration of Policy. The State shall insure and promote the Constitutional mandate
that appointments in the Civil Service shall be made only according to merit and fitness; . . .
(Emphasis supplied)
Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil
service should be based on merit and fitness and should never depend on how close or intimate an
appointee is to the appointing power. 12
Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner Governor
of Batangas Province appointed or designated his brother, Benjamin Laurel, who had been holding a promotional
appointment as Civil Security Officer, a position classified as "primarily confidential" by the Civil Service, to the
position of Provincial Administrator, a position in the Career Civil Service. This Court held that the appointment or
designation as Acting Provincial Administrator was violative of the prohibition against nepotism, then embodied in
Section 49, P.D. No. 807. Moreover, the Court emphatically agreed with the Civil Service Commission that
"although what was extended to Benjamin was merely a designation and not an appointment, . . . the prohibitive
mantle on nepotism would include designation, because what cannot be done directly, cannot be done indirectly:"

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and
designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule
on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no
distinction between appointment and designation. Designation is also defined as "an appointment
or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set
apart for a purpose of duty." (Black's Law Dictionary, Fifth ed., 402)
xxx xxx xxx
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be
differentiated from appointment. Reading this section with Section 25 of said decree, career
service positions may be filled up only by appointment, either permanent or temporary; hence
a designationof a person to fill it up because it is vacant, is necessarily included in the term
appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to
be deemed included in the term appointment under Section 49 of P.D. No. 807, then the
prohibition on nepotism would be meaningless and toothless. Any appointing authority may
circumvent it by merely designating, and not appointing, a relative within the prohibited degree to
a vacant position in the career service. Indeed, as correctly stated by public respondent, "what
cannot be done directly cannot be done indirectly." 13 (Emphasis partly in the original and partly
supplied; citation omitted)
Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad
and comprehensive.
One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not
applicable here because petitioner Victoria was already in the government service at the time petitioners were
married in 1964. It is not disputed that the original 1961 appointment of petitioner Victoria as an Assistant License
Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof, that the
prohibition against nepotism is not
applicable to the case of a member of any family who, after his or her appointment to any position
in any office or bureau, contracts marriage with someone in the same office or bureau, in which
event the employment or retention therein of both husband and wife may be allowed. (Emphasis
supplied)
The subsequent marriage of one to the other of petitioners did not retroactively convert the original
appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued
by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at stake.
Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as
applicable both to original and promotional or subsequent appointments, would be to deprive the government of the
services of loyal and faithful employees who would thereby be penalized simply because the appointing or
recommending official happens to be related to the employees within the third degree of consanguinity or affinity.
A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an
original or a promotion appointment, may in fact be quite loyal and efficient and hard-working; yet that
circumstance will not prevent the application of the prohibition certainly in respect of the original appointment. The
Court is not unaware of the difficulties that the comprehensive prohibition against nepotism would impose upon
petitioner Victoria and others who maybe in the same position. It is essential to stress, however, that the prohibition
applies quite without regard to the actual merits of the proposed appointee and to the good intentions of the
appointing or recommending authority, and that the prohibition against nepotism in appointments whether original
or promotional, is not intended by the legislative authority to penalize faithful service.

The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast
and has remained for decades, is precisely to take out of the discretion of the appointing and recommending
authority the matter of appointing or recommending for appointment a relative. In other words, Section 59 insures
the objectivity of the appointing or recommending official by preventing that objectivity from being in fact tested.
The importance of this statutory objective is difficult to overstress in the culture in which we live and work in the
Philippines, where family bonds remain, in general, compelling and cohesive.
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary
language: it refers to "all appointments" whether original or promotional in nature. The public policy embodied in
Section 59 is clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that
important public policy by introducing a qualification here or a distinction there.
It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the
prohibited class of appointments: the prohibited relationship between the appointing authority (petitioner Mayor)
and the appointee (wife Victoria) existed at the time the promotional appointment was issued. It is scarcely
necessary to add that the reasons which may have moved petitioner Mayor to issue the prohibited appointment are,
as a matter of law, not relevant in this connection. 14
II
We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria
was approved by Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When
petitioner Victoria took her oath of office and commenced the discharge of the duties of a General Services Officer,
she acquired a vested right to that position and cannot, according to petitioners, be removed from that position
without due process of law.
This argument misconceives the nature of the action taken by the respondent Commission. That action was notthe
imposition of an administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There
were no administrative charges in respect of which petitioner Victoria would have been entitled to notice and
hearing. The Commission, in approving or disapproving an appointment, only examines the conformity of the
appointment with applicable provisions of law and whether the appointee possesses all the minimum qualifications
and none of the disqualifications. At all events, as the Solicitor General has noted, petitioner Victoria was afforded
an opportunity to be heard when she filed a motion for reconsideration with the Commission and there challenged
the disapproval by the Commission.
The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292
and the relevant Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria
was a violation of Section 59, it was null and void as being contra legem. Section 9 of Rule V of the Omnibus
Implementing Regulations sets out the principal legal consequence of an appointment issued in disregard of the
statutory prohibition:
Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and effect until disapproved by the Commission.
However, an appointment may be void from the beginning due to fraud on the part of the
appointee or because it was issued in violation of law. (Emphasis supplied)
A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.
The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g.,
promotions. 15 Such power includes the authority to recall an appointment initially approved in disregard of
applicable provisions of Civil Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing
Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any
of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees relative to
promotion; or
(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).
The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers,
Director Escobia, was accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being
void "from the beginning." The approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of
that appointment.
We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion,
amounting to lack of excess of jurisdiction on the part of respondent Commission.
Petitioners have also complained that the letter of Congressman Carmona which had precipitated action on the part
of respondent Commission, was not a verified letter. They contend that the Commission could not or should not
have acted upon the charges raised in that letter.
We are not aware of any law or regulation requiring the letter written by the Congressman to be subscribed under
oath before the Commission could act thereon. Under its own rules and regulations, the Commission may
reviewmotu proprio personnel actions involving the position of a Division Chief or above, such as the position of
General Services Officer. 16 We hold that the respondent Commission had authority, indeed the duty, to recall on its
own initiative the erroneous initial approval of the promotional appointment extended to petitioner Victoria, and to
review the same de novo.
WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
Bidin, J., is on leave.

G.R. No. 102948 February 2, 1994

JAIME T. PANIS, petitioner,
vs.
CIVIL SERVICE COMMISSION and BELLA V. VELOSO, respondent.
Batiquin & Batiquin Law Office for petitioner.
The Solicitor General for public respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of Article IX (A)
of the Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and Resolution No. 91-1100 dated
September 24, 1991, of the Civil Service Commission. The first Resolution dismissed petitioner's appeal from the
decision of the Regional Office of the Civil Service Commission, and at the same time, upheld the appointment of
respondent Bella V. Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City
Medical Center (CCMC). The second Resolution denied the motion for reconsideration of the decision.
I.
The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local government of
Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while private respondent was
Administrative Officer of the City Health Department detailed at the said hospital.
On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of Assistant Chief of
Hospital for Administration of CCMC. Petitioner, a candidate for the said position, promptly protested the
appointment before the Regional Office of the Civil Service Commission (CSC). The CSC Regional Office,
however, indorsed the matter to the Office of the City Mayor, which in turn referred it to the Office of the City
Attorney.
In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed petitioner's
protest and upheld the appointment of private respondent. This dismissal was affirmed by the CSC Regional Office
and later on appeal, by respondent CSC. Hence, the present petition.
II.
Petitioner contends that the appointment of private respondent was made in violation of law, existing civil service
rules and established jurisprudence because (1) the position of Assistant Chief of Hospital for Administration was
not legally created; (2) assuming that it was, there was no qualification standard nor valid screening procedure; and
(3) the seniority and next-in-rank rules were disregarded.
III.
The petition is not impressed with merit.
Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the charter of
the Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said
institution. The hospital's name was changed to CCMC, and the departments and offices therein were reorganized.
The Office of Hospital Administrator was created and granted such powers as were deemed in line with the
objectives of the Ordinance.
On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital Administrator. This
appointment was, however, not acted upon by the CSC but returned to the appointing authority on October 21, 1987
for lack of the screening requirement. On even date, the City Mayor withdrew private respondent's appointment. The
title of Hospital Administrator was later found to be a misnomer and thus was properly classified by the Joint
Commission on Local Government Personnel Administration as one of Assistant Chief of Hospital for
Administration. This classification was subsequently approved by the Department of Budget Management.
The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator
created by Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, but the designation

thereof merely corrected to reflect the proper classification of the position under existing rules (Rollo, pp. 78-80).
The Office of Assistant Chief of Hospital for Administration therefore was created and existed in accordance with
law.
As a result of the reclassification, candidates to the position, among whom were petitioner and private respondent,
were notified by the Personnel Selection Board (Board) of the screening scheduled on October 22, 1987. The notice
sent petitioner at 9:30 A.M. may have been "too close for comfort to the 10:00 schedule," but the screening was
actually reset to the following day, October 23, 1987. Petitioner however never appeared before the Board. Neither
did he appear, despite due notice, at the final selection process on November 5, 1987.
The fact that private respondent was actually screened and interviewed by the Board does not mean that her
appointment was a fait accompli. The screening was just a stage in the appointment process.
Private respondent and petitioner are college degree holders with three units in Public Administration and three
years experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum
qualifications for the position. The determination, however, who among the qualified candidates should be preferred
belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private
respondent.
The argument that petitioner should have been the one appointed because he was next in rank to the contested
position and that he had been with CCMC since 1961 as compared to private respondent, who joined the hospital in
1986 and only on detail, cannot be upheld.
It is ironic that petitioner is personally interested in the subject position, the creation and validity of which he
himself originally questioned. Be that as it may, the "next in rank" rule specifically applies only in cases of
promotion (Medenilla v. Civil Service Commission, 194 SCRA 278 [1991]; Pineda v. Claudio, 28 SCRA 34
[1969]). The instant controversy, however, involves a new office and a position created in the course of a valid
reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of present employees in
the government service, by reinstatement, by reemployment of those separated from the service, and appointment of
outsiders who have appropriate civil service eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19
(5); E.O. 292, Bk. V, Sec. 21 (5); Espaol v. Civil Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil
Service Commission, supra., at 289-290).
It cannot be said that private respondent was an outsider. Although directly employed by the City Health
Department, she actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she
was an outsider, the law does not prohibit the employment of persons from the private sector so long as they have
the appropriate civil service eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next
in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower
position in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987
provide is that if a vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall
be considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Espaol v. Civil Service
Commission, supra; Barrozo v. Civil Service Commission, 198 SCRA 487 [1991]). In other words, one who is "next
in rank" to a vacancy is given preferential consideration for promotion to the vacant position, but it does nor
necessarily follow that he alone and no one else can be appointed. There is no vested right granted the next in rank
nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant position (Barrozo v.
Civil Service Commission, supra; Santiago, Jr. v. Civil Service Commission, 178 SCRA 733 [1989]).
An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of
whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if
not plenary, is granted to the appointing authority (Medenilla v. Civil Service Commission, supra, at 291; Central
Bank v. Civil Service Commission, 171 SCRA 744 [1989]). After all, the appointing authority is the officer
primarily responsible for the administration of the office, and is likewise in the best position to determine who

among the qualified candidates can efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA
498 [1969]); Reyes v. Abeleda, 22 SCRA 825 [1968]). Indeed, whom to appoint among those qualified is an
administrative question involving considerations of wisdom for the best interest of the service which only the
appointing authority can decide (Simpao v. Civil Service Commission, 191 SCRA 396 [1990]; Luego v. Civil
Service Commission, 143 SCRA 327 [1986]).
It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the level of
performance of the said hospital. She accomplished this mission by institutionalizing changes in the management
and financial reporting system of the hospital such that its income doubled in less than two years since her detail.
Private respondent's competence and her remarkable achievement are things the appointing authority took notice of
and which served as basis for her appointment to the contested position.
Finally, the moral character and honesty of private respondent are issues that should be threshed out in an
appropriate action before the proper forum. As it stands, private respondent is presumed innocent and her acts done
in good faith, until proven otherwise.
WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court resolved to
DISMISS the petition for lack of merit.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno and Vitug,
JJ., concur.
Kapunan, J., took no part.
Nocon, J., is on leave.

G.R. No. 116033. February 26, 1997]

ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE
C. BATAUSA, respondents.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public
funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian
of distrained property? Did such accused become a public officer and therefore subject to the graft courts
jurisdiction as a consequence of such designation by the BIR?
These are the main questions in the instant petition for review of respondent Sandiganbayans Decision[1] in
Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and
property, and Resolution[2] dated June 20, 1994, denying his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling dirt and ore.[3] His services
were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy,

Surigao del Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at
the formers premises.[4] From this set of circumstances arose the present controversy.
x x x It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the Main Office of
the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his authorized
representative of Revenue Region 10, Butuan City commanding the latter to distraint the goods, chattels or effects
and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The
Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or
remit to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by
accused Azarcon on June 17, 1985.[5]
Petitioner Azarcon, in signing the Receipt for Goods, Articles, and Things Seized Under Authority of the
National Internal Revenue, assumed the undertakings specified in the receipt the contents of which are reproduced
as follows:
(I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal Revenue
Officer, Bureau of Internal Revenue of the Philippines, the following described goods, articles, and things:
Kind of property
--Isuzu dump truck
Motor number
--E120-229598
Chassis No.
--SPZU50-1772440
Number of CXL
--6
Color
--Blue
Owned By
--Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending investigation by the Commissioner of
Internal Revenue or his duly authorized representative. (I) further promise that (I) will faithfully keep, preserve, and,
to the best of (my) ability, protect said goods, articles, and things seized from defacement, demarcation, leakage,
loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter or remove or
dispose of the same in any manner without the express authority of the Commissioner of Internal Revenue; and that
(I) will produce and deliver all of said goods, articles, and things upon the order of any court of the Philippines, or
upon demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of Internal
Revenue.[6]
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIRs Regional Director for
Revenue Region 10 B, Butuan City stating that
x x x while I have made representations to retain possession of the property and signed a receipt of the same, it
appears now that Mr. Jaime Ancla intends to cease his operations with us. This is evidenced by the fact that
sometime in August, 1985 he surreptitiously withdrew his equipment from my custody. x x x In this connection,
may I therefore formally inform you that it is my desire to immediately relinquish whatever responsibilities I have
over the above-mentioned property by virtue of the receipt I have signed. This cancellation shall take effect
immediately. x x x .[7]
Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo, and
requested him to prevent this truck from being taken out of the PICOP concession. By the time the order to bar the
trucks exit was given, however, it was too late.[8]
Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
An analysis of the documents executed by you reveals that while you are (sic) in possession of the dump truck
owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and preserving the unit in behalf
of the Bureau of Internal Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which
you have signed, obliged and committed to surrender and transfer to this office. Your failure therefore, to observe
said provisions does not relieve you of your responsibility. [9]
Thereafter, the Sandiganbayan found that

On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B, Butuan City, sent a
progress report to the Chief of the Collection Branch of the surreptitious taking of the dump truck and that Ancla
was renting out the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation
of the Philippines, the same company which engaged petitioners earth moving services), Mangagoy, Surigao del
Sur. She also suggested that if the report were true, a warrant of garnishment be reissued against Mr. Cueva for
whatever amount of rental is due from Ancla until such time as the latters tax liabilities shall be deemed satisfied. x
x x However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla
on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calos report. [10]
Provincial Fiscal Pretextato Montenegro forwarded the records of the complaint x x x to the Office of the
Tanodbayan on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct
preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by
Ombudsman (Tanodbayan) Conrado Vasquez.[11]
Along with his co-accused Jaime Ancla, petitioner Azarcon was charged before the Sandiganbayan with the
crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal
Code (RPC) in the following Information[12]filed on January 12, 1990, by Special Prosecution Officer Victor
Pascual:
That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private individual but who, in his capacity as
depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily
offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 501772440, and number CXL-6 and was authorized to be such under the authority of the Bureau of Internal Revenue,
has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in
satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE
PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public fund, with grave abuse of
confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and
there wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit
the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused
Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority,
consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the
government in the amount of P80,831.59 in a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging
that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer,
hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal
Code.[13] The Sandiganbayan granted the motion for reinvestigation on May 22, 1991. [14] After the reinvestigation,
Special Prosecution Officer Roger Berbano, Sr., recommended the withdrawal of the information [15] but was
overruled by the Ombudsman.[16]
A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not
have jurisdiction over the person of the petitioner since he was not a public officer.[17] On May 18, 1992, the
Sandiganbayan denied the motion.[18]
When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file
demurrer to evidence which was denied on November 16, 1992, for being without merit. [19] The petitioner then
commenced and finished presenting his evidence on February 15, 1993.
The Respondent Courts Decision
On March 8, 1994, respondent Sandiganbayan[20] rendered a Decision,[21] the dispositive portion of which
reads:

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt as principal of
Malversation of Public Funds defined and penalized under Article 217 in relation to Article 222 of the Revised
Penal Code and, applying the Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary
surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment ranging from TEN (10)
YEARS and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of Reclusion Temporal.To indemnify the Bureau of Internal Revenue the amount
of P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case of insolvency; to suffer
special perpetual disqualification; and, to pay the costs.
Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court up to this date,
let this case be archived as against him without prejudice to its revival in the event of his arrest or voluntary
submission to the jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel,[22] filed a motion for new trial or reconsideration on March 23, 1994, which
was denied by the Sandiganbayan in its Resolution[23] dated December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the Sandiganbayans assailed Decision and
Resolution:
I. The Sandiganbayan does not have jurisdiction over crimes committed solely by private individuals.
II. In any event, even assuming arguendo that the appointment of a private individual as a custodian or a
depositary of distrained property is sufficient to convert such individual into a public officer, the
petitioner cannot still be considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code which authorizes the Bureau of Internal Revenue to
constitute private individuals as depositaries of distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision of law, or by election or by appointment by a
competent authority.
III. No proof was presented during trial to prove that the distrained vehicle was actually owned by the accused Jaime
Ancla; consequently, the governments right to the subject property has not been established.
IV. The procedure provided for in the National Internal Revenue Code concerning the disposition of distrained
property was not followed by the B.I.R., hence the distraint of personal property belonging to Jaime C. Ancla and
found allegedly to be in the possession of the petitioner is therefore invalid.
V. The B.I.R. has only itself to blame for not promptly selling the distrained property of accused Jaime C. Ancla in
order to realize the amount of back taxes owed by Jaime C. Ancla to the Bureau. [24]
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the
controversy. Corollary to this is the question of whether petitioner can be considered a public officer by reason of
his being designated by the Bureau of Internal Revenue as a depositary of distrained property.

The Courts Ruling

The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not, the provisions of the
law should be inquired into.[25] Furthermore, the jurisdiction of the court must appear clearly from the statute law or
it will not be held to exist. It cannot be presumed or implied.[26] And for this purpose in criminal cases, the
jurisdiction of a court is determined by the law at the time of commencement of the action. [27]
In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the
applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but
prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided
that:
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those
employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where
the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine
of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall
be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit
Trial Court.
xxxxxxxxx
In case private individuals are charged as co-principals, accomplices or accessories with the public officers or
employees, including those employed in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees.
x x x x x x x x x.
The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have
jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal,
accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a
public officer committing an offense under the Sandiganbayans jurisdiction.Thus, unless petitioner be proven a
public officer, the Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC
determines who are public officers:
Who are public officers. -- For the purpose of applying the provisions of this and the preceding titles of the book,
any person who, by direct provision of the law, popular election, popular election or appointment by competent
authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of
any rank or classes, shall be deemed to be a public officer.

Thus,
(to) be a public officer, one must be -(1) Taking part in the performance of public functions in the government, or
Performing in said Government or any of its branches public duties as an employee, agent, or subordinate
official, of any rank or class; and
(2) That his authority to take part in the performance of public functions or to perform public duties must be -a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.[28]
Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR,
commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by
popular election. The next logical query is whether petitioners designation by the BIR as a custodian of distrained
property qualifies as appointment by direct provision of law, or by competent authority.[29] We answer in the
negative.
The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned
by Jaime Ancla, and in requiring the petitioner Alfredo Azarcon who was in possession thereof to sign a pro
forma receipt for it, effectively designated petitioner a depositary and, hence, citing U.S. vs. Rastrollo,[30] a public
officer.[31] This is based on the theory that
(t)he power to designate a private person who has actual possession of a distrained property as a depository of
distrained property is necessarily implied in the BIRs power to place the property of a delinquent tax payer (sic) in
distraint as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National
Internal Revenue Code, (NIRC) x x x.[32]
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts
therein are not identical, similar or analogous to those obtaining here. While the cited case involved
a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt
with the BIRs administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in
relation to his back taxes, property which was received by petitioner Azarcon. In the cited case, it was clearly within
the scope of that courts jurisdiction and judicial power to constitute the judicial deposit and give the depositary a
character equivalent to that of a public official.[33] However, in the instant case, while the BIR had authority to
require petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint
Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and
administrative agencies exercise only that power delegated to them as defined either in the Constitution or in
legislation or in both.[34] Thus, although the appointing power is the exclusive prerogative of the President, x x
x[35] the quantum of powers possessed by an administrative agency forming part of the executive branch will still be
limited to that conferred expressly or by necessary or fair implication in its enabling act. Hence, (a)n administrative
officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the
exercise thereof.[36] Corollarily, implied powers are those which are necessarily included in, and are therefore of
lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental
thereto.[37] For to so extend the statutory grant of power would be an encroachment on powers expressly lodged in
Congress by our Constitution.[38] It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes
the BIR to effect a constructive distraint by requiring any person to preserve a distrained property, thus:
xxxxxxxxx

The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having
possession or control of such property to sign a receipt covering the property distrained and obligate himself to
preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the
express authority of the Commissioner.
xxxxxxxxx
However, we find no provision in the NIRC constituting such person a public officer by reason of such
requirement. The BIRs power authorizing a private individual to act as a depositary cannot be stretched to include
the power to appoint him as a public officer. The prosecution argues that Article 222 of the Revised Penal Code x x
x defines the individuals covered by the term officers under Article 217 [39] x x x of the same Code.[40] And
accordingly, since Azarcon became a depository of the truck seized by the BIR he also became a public officer who
can be prosecuted under Article 217 x x x.[41]
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. -- The provisions of this chapter shall apply to private individuals
who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and
to any administrator or depository of funds or property attached, seized or deposited by public authority, even if
such property belongs to a private individual.
Legislative intent is determined principally from the language of a statute. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible or absurd or would lead to an injustice. [42] This is
particularly observed in the interpretation of penal statutes which must be construed with such strictness as to
carefully safeguard the rights of the defendant x x x. [43] The language of the foregoing provision is clear. A private
individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts
defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the
same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private
individual falling under said Article 222 is to be deemed a public officer.
After a thorough review of the case at bench, the Court thus finds petitioner Alfredo Azarcon and his coaccused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent
Sandiganbayan which had no jurisdiction over them. The Sandiganbayans taking cognizance of this case is of no
moment since (j)urisdiction cannot be conferred by x x x erroneous belief of the court that it had jurisdiction. [44] As
aptly and correctly stated by the petitioner in his memorandum:
From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he
agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime
Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact
charging two private individuals without any public officer being similarly charged as a coconspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the
proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack
of jurisdiction.[45]
WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and
declared NULL and VOID for lack of jurisdiction. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

G.R. No. 93479

June 25, 1991

TEODORO G. BARROZO, petitioner,

vs.
THE CIVIL SERVICE COMMISSION and VALENTINO L. JULIAN, respondents.
Amado D. Orden and Vicente Millora for petitioner.
Evalyn H. Itaas-Fetalino, Normita L. Villanueva and Dante G. Huerta for Civil Service Commission.
Sanidad Law Offices & Luiz L. Lardizabal, Marciano E. Concepcion and Benjamin Rillera for private respondent.

CRUZ, J.:
The facts of this case are familiar. They involve the same arrogation of power by the public respondent that we have
rejected in earlier cases.
On November 10, 1988, David G. Borja retired as City Engineer of Baguio. On that date, petitioner Teodoro G.
Barrozo was a Senior Civil Engineer of the Department of Public Works and Highways assigned to the Office of the
City Engineer of Baguio. Private respondent Valentino L. Julian was the Assistant City Engineer of Baguio.
On December 27, 1988, Mayor Ramon L. Labo, Jr. extended to the petitioner a permanent appointment as City
Engineer of Baguio. This appointment was approved by the Civil Service Regional Office No. 1 on January 2, 1989.
On February 16, 1989, after his protest was rejected by Mayor Labo, the private respondent appealed the
appointment to the Merit Systems Board of the Civil Service Commission, claiming that as a qualified next-in-rank
officer, he had pre-emptive rights over the petitioner. On November 22, 1989, the Civil Service Commission
Cordillera Administrative Region (CSC-CAR) to which the appeal was referred, declared the petitioner's
appointment void for being violative of Civil Service promotion rules. His motion for reconsideration having been
denied, the petitioner then appealed to the Civil Service Commission. On March 5, 1990, the public respondent
issued the resolution now under challenge.1 The motion for reconsideration thereof was denied on May 23, 1990.2
The text of the resolution carried the significant statement that "a comparative analysis of the qualifications of the
contestants shows that both meet the minimum requirements for the position of City Engineer."
The Commission also found. however, that
There is no showing that Julian who is next-in-rank to the contested position is barred by law or suffers
from any legal disqualification to occupy the position of City Engineer. Neither is there any showing that
Barrozo possesses far superior qualifications nor special reasons cited by the appointing authority why
Julian cannot be promoted to the higher position. This being so, the Commission finds the appointment of
Barrozo not in accordance with Civil Service Law, rules and regulations. At this juncture. it is significant to
stress that while the appointing authority enjoys a wide latitude of discretion in the selection of personnel
for his agency, nevertheless such discretion must be exercised within the confines of Civil Service Law,
rules and regulations.
It therefore disposed as follows:
WHEREFORE, foregoing premises considered, the Commission resolved to dismiss as it hereby dismisses
the instant appeal of Teodoro Barrozo for lack of merit.1avvphi1 Accordingly, the CSC-CAR decision
dated November 22, 1989 is affirmed insofar, as the revocation of the appointment of Barrozo is concerned
but sets aside said decision insofar as subjecting the contestants to screening and evaluation by the
Personnel Selection Board. It is hereby directed that Valentino L. Julian be appointed to the position of City
Engineer of Baguio.

We note that the Commission has once again directed the appointment of its own choice contrary to our consistent
ruling on this matter. Only recently, in Lapinid v. Civil Service Commission, 3 we again emphasized:
We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of
appointment except over its own personnel. Neither does it have the authority to review the appointments
made by other offices except only to ascertain if the appointee possesses the required qualifications. The
determination of who among aspirants with the minimum statutory qualifications should be preferred
belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an
appointment because it believes another person is better qualified and much less can it direct the
appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment
may in proper cases be the subject of mandamus, the selection itself of the appointee taking into account
the totality of his qualifications, including those abstract qualities that define his personality is the
prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing
authority. It is a political question that the Civil Service Commission has no power to review under the
Constitution and the applicable laws.
In his Comment, the Solicitor General has taken a stand against the respondent Commission, relying on the abovestated doctrine as earlier enunciated in the leading case of Luego v. Civil Service Commission 4 and only recently in
Gaspar v. Civil Service Commission,5 Teologo v. Civil Service Commission6 and Patagoc v. Civil Service
Commission.7 In fairness, however, he also moved that the Commission be given an opportunity to submit its own
Comment in defense of its own decision. The public respondent has done so and insists that since the disputed
vacancy was being filled by promotion, it was imperative that the next-in-rank rule be observed. Disregard of that
rule called for the disapproval of the petitioner's appointment in favor of the private respondent, who was the
Assistant City Engineer of Baguio at the time the controversial vacancy occurred.
This argument is not well-taken. The law does not absolutely require that the person who is next in rank shall be
promoted to fill a vacancy. In fact, the vacancy may be filled not by promotion but "by transfer of present employees
in the government service, by reinstatement by re-employment of persons separated through reduction in force, or
by appointment of persons with the civil service eligibility appropriate to the position." 8 What the Civil Service Act
provides in its Sec. 19(3) is that if a vacancy is filled by promotion, the person holding that position next-in-rank
thereto "shall be considered for promotion."
The said provision reads in full as follows:
Section 19. Recruitment and Selection of Employees. . . .
xxx

xxx

xxx

(3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7,
the employees in the government service who occupy the next lower positions in the occupational group
under which the vacant position is classified, and in other functionally related occupational groups and who
are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion.
(Emphasis supplied)
Interpreting the next-in-rank rule, we said in Santiago v. Civil Service Commission:9
One who is next in rank is entitled to preferential consideration for promotion to the higher vacancy but it
does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right
to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next
higher position.

And, indeed, as we noted in the recent case of Abila v. Civil Service Commission,10 the Commission itself, in
implementing the said law, provides in its Resolution No. 89-779 as follows:
B. Rules on Protest Cases
xxx

xxx

xxx

xxx

xxx

Rule III. Procedure in Filling Vacancies

xxx

Section 2. Positions in the Second Level. When a vacancy occurs in the second level of the career
service as herein defined, the employees in the department who occupy the next lower positions in the
occupational group under which the vacant position is classified, and in other functionally related
occupational groups, who are competent and qualified and with appropriate civil service eligibility shall be
considered for appointment to the vacancy. (Emphasis supplied)
It is presumed that, conformably to the above injunctions, Mayor Labo dutifully considered the private respondent
for promotion to the position of City Engineer of Baguio City although he ultimately decided in favor of the
petitioner. There being no showing that the appointing authority has gravely abused his discretion, even this Court
must respect his decision.
We find that, as in the many other earlier cases, the Commission has again overstepped its authority, encroached
upon the discretion of the appointing authority, and officiously directed the appointment of its own choice. Hence,
we must again reverse its action.
Lapinid declared that "henceforth, departure from the mandate of Luego by the Civil Service Commission after the
date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely,
in view especially of the status of the contemner." No sanctions are imposed at this time as the case at bar arose
before the promulgation of Lapinid.
WHEREFORE, the petition is GRANTED. The permanent appointment of Teodoro G. Barrozo as City Engineer of
Baguio City is declared VALID. Resolution No. 90-247 dated March 5, 1990, and Resolution No. 90-462, dated
May 23, 1990, of the respondent Civil Service Commission are hereby SET ASIDE, without any pronouncement as
to costs.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.