FIRST DIVISION
The Commission shall be funded with an initial budget to be drawn from the
G.R. No. 145368 April 12, 2002
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223
"constituting a Committee for the preparation of the National Centennial Celebration
in 1998." The Committee was mandated "to take charge of the nationwide prepara-
tions for the National Celebration of the Philippine Centennial of the Declaration of
Philippine Independence and the Inauguration of the Malolos Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconsti-
tuting the Committee for the preparation of the National Centennial Celebrations in
1988." It renamed the Committee as the "National Centennial Commission." Ap-
pointed to chair the reconstituted Commission was Vice-President Salvador H. Lau-
rel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary
Chairpersons.2
Characterized as an "i body," the existence of the Commission "shall terminate upon
the completion of all activities related to the Centennial Celebrations."3 Like its pre-
decessor Committee, the Commission was tasked to "take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial of the Decla-
ration of Philippine Independence and the Inauguration of the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to "prepare, for approval of the President, a Comprehensive Plan for
the Centennial Celebrations within six (6) months from the effectivity of" the Exec-
utive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from
the Presidential Management Staff, the National Commission for Culture and the
Arts, and the National Historical Institute. Said Secretariat shall be headed by a full
time Executive Director who shall be designated by the President.
Sec. 4.
Department of Tourism and the president’s Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations
for succeeding years shall be incorporated in the budget of the Office of the Presi-
dent.
Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation
(Expocorp) was created.4 Petitioner was among the nine (9) Expocorp incorporators,
who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Ex-
ecutive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech
in the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Coseteng’s privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35,
creating an ad hoc and independent citizens’ committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its com-
ponent activities. Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of
the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committee’s recommendations was "the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice
to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation… of the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its own report. It rec-
ommended "the further investigation by the Ombudsman, and indictment, in proper
cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e)
of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article
217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently
referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman.
On January 27, 2000, the Bureau issued its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombuds-
man against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP
President Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec.
3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules
and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-affi-
davit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued
a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL
and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section
3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution
also directed that an information for violation of the said law be filed against Laurel
and Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to
Laurel but dismissed the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining
order, commanding respondents to desist from filing any information before the
Sandiganbayan or any court against petitioner for alleged violation of Section 3(e)
of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDER-
TOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS
OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,
WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A
"PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES
ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs. Sandi-
ganbayan,9 where it was held that the jurisdiction of the Ombudsman was limited to
cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and
higher. As petitioner’s position was purportedly not classified as Grade 27 or higher,
the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction
over him.
This last contention is easily dismissed. In the Court’s decision in Uy, we held that
"it is the prosecutor, not the Ombudsman, who has the authority to file the corre-
sponding information/s against petitioner in the regional trial court. The Ombudsman
exercises prosecutorial powers only in cases cognizable by the Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State
and regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular courts.
The investigation and prosecutorial powers of the Ombudsman relate to cases right-
fully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A.
6770 ("An Act Providing for the Functional and Structural Organization of the Office
of the Ombudsman, and for other purposes") which vests upon the Ombudsman
"primary jurisdiction over cases cognizable by the Sandiganbayan…" And this is fur-
ther buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of
the Special Prosecutor shall have the power to "conduct preliminary investigation
and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus,
repeated references to the Sandiganbayan’s jurisdiction clearly serve to limit the
Ombudsman’s and Special Prosecutor’s authority to cases cognizable by the Sandi-
ganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing pronounce-
ment in its Resolution dated March 20, 2001. The Court explained the rationale for
this reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is
plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or inef-
ficient. The law does not make a distinction between cases cognizable by the San-
diganbayan and those cognizable by regular courts. It has been held that the clause
"any illegal act or omission of any public official" is broad enough to embrace any
crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, partic-
ularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cog-
nizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cog-
nizable by the Sandiganbayan. The law defines such primary jurisdiction as author-
izing the Ombudsman "to take over, at any stage, from any investigatory agency of
the government, the investigation of such cases." The grant of this authority does
not necessarily imply the exclusion from its jurisdiction of cases involving public of-
ficers and employees by other courts. The exercise by the Ombudsman of his pri-
mary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible
with the discharge of his duty to investigate and prosecute other offenses committed
by public officers and employees. Indeed, it must be stressed that the powers
granted by the legislature to the Ombudsman are very broad and encompass all
kinds of malfeasance, misfeasance and non-feasance committed by public officers
and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section 11 of RA 6770.
The Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute
is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly,
the lawmakers did not intend to confine the investigatory and prosecutory power of
the Ombudsman to these types of cases. The Ombudsman is mandated by law to
act on all complaints against officers and employees of the government and to en-
force their administrative, civil and criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to utilize the personnel of his
office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special Prose-
cutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with
Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of
the most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active
and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.]
Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC,
was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as "protectors of the
people," who "shall act promptly on complaints filed in any form or manner against
public officials or employees of the government, or any subdivision, agency or in-
strumentality thereof, including government-owned or controlled corporations."
Among the awesome powers, functions, and duties vested by the Constitution11 upon
the Office of the Ombudsman is to "[i]nvestigate… any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of
said law respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or em-
ployees of the Government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and enforce their adminis-
trative, civil and criminal liability in every case where the evidence warrants in order
to promote efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have
the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omis-
sion 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 Gov-
ernment, the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of malfea-
sance, misfeasance and non-feasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance
and non-feasance by a public officer or employee of the government, or of any
subdivision, agency or instrumentality thereof, including government-owned or con-
trolled corporations.12
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence13 is that pro-
vided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign func-
tions of the government, to be exercised by him for the benefit of the public. The
individual so invested is a public officer.14
The characteristics of a public office, according to Mechem, include the delegation
of sovereign functions, its creation by law and not by contract, an oath, salary, con-
tinuance of the position, scope of duties, and the designation of the position as an
office.15
Petitioner submits that some of these characteristics are not present in the position
of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of
the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions
of government as "[t]he most important characteristic" in determining whether a
position is a public office or not.
The most important characteristic which distinguishes an office from an employment
or contract is that the creation and conferring of an office involves a delegation to
the individual of some of the sovereign functions of government, to be exercised by
him for the benefit of the public; – that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of this nature, the
individual is not a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign functions of government?
Certainly, the law did not delegate upon the NCC functions that can be described as
legislative or judicial. May the functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power "is gener-
ally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance."17 The
executive function, therefore, concerns the implementation of the policies as set
forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation’s historical and cultural heritage and
resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is nec-
essary for long-range planning and continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural,
and business sectors to serve as effective instruments from the launching and over-
seeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the "need to strengthen the said Committee to ensure a more coordi-
nated and synchronized celebrations of the Philippine Centennial and wider partici-
pation from the government and non-government or private organizations." It also
referred to the "need to rationalize the relevance of historical links with other coun-
tries."
The NCC was precisely created to execute the foregoing policies and objectives, to
carry them into effect. Thus, the Commission was vested with the following func-
tions:
(a) To undertake the overall study, conceptualization, formulation and implementa-
tion of programs and projects on the utilization of culture, arts, literature and media
as vehicles for history, economic endeavors, and reinvigorating the spirit of national
unity and sense of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National Exposition ’98 within
Metro Manila, the original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all infor-
mation about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the
programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In
this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements) to ensure the preserva-
tion and maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it in the performance of its tasks;
and,
(g) Submit regular reports to the President on the plans, programs, projects, activi-
ties as well as the status of the preparations for the Celebration.18
It bears noting the President, upon whom the executive power is vested,19 created
the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. – Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s economic develop-
ment, especially in Central Luzon. Petitioner himself admitted as much in the oral
arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, don’t you agree that
the task of the centennial commission was also to focus on the long term over all
socio economic development of the zone and Central Luzon by attracting investors
in the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch
on by lack of material time I could not but that is a very important point. When I
was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño
but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery
in that area by putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside from attract-
ing business investments and employment. And the Estrada administration decided
to junk this project there 48, 40 thousand people who lost job, they were employed
in Expo. And our target was to provide 75 thousand jobs. It would have really cali-
brated, accelerated the development of Central Luzon. Now, I think they are going
back to that because they had the airport and there are plan to revive the Expo site
into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full em-
ployment is a fundamental state policy.20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by
a municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the "holding of a nationwide celebration which marked the
nation’s 100th birthday may be likened to a national fiesta which involved only the
exercise of the national government’s proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does
not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for the
special benefit of the community and not for the general welfare of the public per-
formed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is
not a source of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like which are
for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding circum-
stances of a particular case are to be considered and will be decisive. The basic
element, however beneficial to the public the undertaking may be, is that it is gov-
ernment in essence, otherwise, the function becomes private or propriety in charac-
ter. Easily, no governmental or public policy of the state is involved in the celebration
of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that "there can be no hard and fast rule for purposes of deter-
mining the true nature of an undertaking or function of a municipality; the surround-
ing circumstances of a particular case are to be considered and will be decisive."
Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the
"surrounding circumstances plus the political, social, and cultural backgrounds" could
produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances
plus the political, social, and cultural backgrounds may have a decisive bearing on
this question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display re-
sulting in the death of a bystander alleged to have been caused by defendants’
negligence. The defendants demurred to the complaint invoking the defense that
the city was engaged in the performance of a public governmental duty from which
it received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the cele-
bration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute….
A municipality corporation, which under permissive authority of its charter or of stat-
ute, conducted a public Fourth of July celebration, including a display of fireworks,
and sent up a bomb intended to explode in the air, but which failed to explode until
it reached the ground, and then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the dif-
ferent departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday. Throughout the country
it has been recognized and celebrated as such. These celebrations, calculated to
entertain and instruct the people generally and to arouse and stimulate patriotic
sentiments and love of country, frequently take the form of literary exercises con-
sisting of patriotic speeches and the reading of the Constitution, accompanied by a
musical program including patriotic air sometimes preceded by the firing of cannon
and followed by fireworks. That such celebrations are of advantage to the general
public and their promotion a proper subject of legislation can hardly be questioned.
x x x"
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the libera-
tion of our people from oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations was an occa-
sion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it,
it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen Filipino values."
The significance of the Celebrations could not have been lost on petitioner, who
remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of our history, proud of what
our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining
the nature of the position. It is not conclusive. The salary is a mere incident and
forms no part of the office. Where a salary or fees is annexed, the office is provided
for it is a naked or honorary office, and is supposed to be accepted merely for the
public good.23 Hence, the office of petitioner as NCC Chair may be characterized as
an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to
which salary, compensation or fees are attached.24 But it is a public office, nonethe-
less.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc
body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an indi-
vidual is appointed by government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those duties continue though
the person be changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an officer."
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present "it can make no difference,"
says Pearson, C.J., "whether there be but one act or a series of acts to be done, --
whether the office expires as soon as the one act is done, or is to be held for years
or during good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re Corliss.26 There
the Supreme Court of Rhode Island ruled that the office of Commissioner of the
United States Centennial Commission is an "office of trust" as to disqualify its holder
as elector of the United States President and Vice-President. (Under Article II of the
United States Constitution, a person holding an office of trust or profit under the
United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds
an office of trust under the United States, and that he is therefore disqualified for
the office of elector of President and Vice-President of the United States.
The commission was created under a statute of the United States approved March
3, 1871. That statute provides for the holding of an exhibition of American and for-
eign arts, products, and manufactures, "under the auspices of the government of
the United States," and for the constitution of a commission, to consist of more than
one delegate from each State and from each Territory of the United States, "whose
functions shall continue until close of the exhibition," and "whose duty it shall be to
prepare and superintend the execution of the plan for holding the exhibition." Under
the statute the commissioners are appointed by the President of the United States,
on the nomination of the governor of the States and Territories respectively. Various
duties were imposed upon the commission, and under the statute provision was to
be made for it to have exclusive control of the exhibit before the President should
announce, by proclamation, the date and place of opening and holding the exhibi-
tion. By an act of Congress approved June 1st, 1872, the duties and functions of the
commission were further increased and defined. That act created a corporation,
called "The Centennial Board of Finance," to cooperate with the commission and to
raise and disburse the funds. It was to be organized under the direction of the com-
mission. The seventh section of the act provides "that the grounds for exhibition
shall be prepared and the buildings erected by the corporation, in accordance with
plans which shall have been adopted by the United States Centennial Commission;
and the rules and regulations of said corporation, governing rates for entrance and
admission fees, or otherwise affecting the rights, privileges, or interests of the ex-
hibitors, or of the public, shall be fixed and established by the United States Centen-
nial Commission; and no grant conferring rights or privileges of any description con-
nected with said grounds or buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States Centennial Commission, and
said commission shall have power to control, change, or revoke all such grants, and
shall appoint all judges and examiners and award all premiums." The tenth section
of the act provides that "it shall be the duty of the United States Centennial Com-
mission to supervise the closing up of the affairs of said corporation, to audit its
accounts, and submit in a report to the President of the United States the financial
results of the centennial exhibition."
It is apparent from this statement, which is but partial, that the duties and functions
of the commission were various, delicate, and important; that they could be suc-
cessfully performed only by men of large experience and knowledge of affairs; and
that they were not merely subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character. We think that persons per-
forming such duties and exercising such functions, in pursuance of statutory direc-
tion and authority, are not to be regarded as mere employees, agents, or committee
men, but that they are, properly speaking, officers, and that the places which they
hold are offices. It appears, moreover, that they were originally regarded as officers
by Congress; for the act under which they were appointed declares, section 7, that
"no compensation for services shall be paid to the commissioners or other officers,
provided for in this act, from the treasury of the United States." The only other
officers provided for were the "alternates" appointed to serve as commissioners
when the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation. Even assuming that Expocorp is a
private corporation, petitioner’s position as Chief Executive Officer (CEO) of
Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omis-
sions as CEO of Expocorp must be viewed in the light of his powers and functions
as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not receive any compen-
sation for his services as NCC or Expocorp Chair, he is not a public officer as defined
in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore,
beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:
SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. – As used in this Act, the term –
xxx
(b) "Public officer" includes elective and appointive officials and employees, perma-
nent or temporary, whether in the classified or unclassified or exemption service
receiving compensation, even nominal, from the government as defined in the pre-
ceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a "public officer" is ex-
pressly limited to the application of R.A. No. 3019. Said definition does not apply for
purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitu-
tion and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft
and Corrupt Practices Act involves the appreciation of evidence and interpretation of
law, matters that are best resolved at trial.
To illustrate, the use of the term "includes" in Section 2 (b) indicates that the defi-
nition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of sev-
eral laws that define "public officers." Article 203 of the Revised Penal Code, for
example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by
competent authority, takes part in the performance of public functions in the Gov-
ernment of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29
on the other hand, states:
Officer – as distinguished from "clerk" or "employee", refers to a person whose du-
ties not being of a clerical or manual nature, involves the exercise of discretion in
the performance of the functions of the government. When used with reference to
a person having authority to do a particular act or perform a particular person in the
exercise of governmental power, "officer" includes any government employee, agent
or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may be con-
sidered a "public official" whether or not one receives compensation, thus:
"Public Officials" include elective and appointive officials and employees, permanent
or temporary, whether in the career or non-career service including military and
police personnel, whether or not they receive compensation, regardless of amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
"compensation," which is not defined by said law, has many meanings.
Under particular circumstances, "compensation" has been held to include allowance
for personal expenses, commissions, expenses, fees, an honorarium, mileage or
traveling expenses, payments for services, restitution or a balancing of accounts,
salary, and wages.30
How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019,
to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner
did not receive any salary, the records do not reveal if he received any allowance,
fee, honorarium, or some other form of compensation. Notably, under the by-laws
of Expocorp, the CEO is entitled to per diems and compensation.31 Would such fact
bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
Court’s Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
EN BANC
G. R. No. 155027 February 28, 2006
THE VETERANS FEDERATION OF THE PHILIPPINES represented by Es-
meraldo R. Acorda, Petitioner,
vs.
Hon. ANGELO T. REYES in his capacity as Secretary of National Defense;
and Hon. EDGARDO E. BATENGA in his capacity as Undersecretary for Civil
Relations and Administration of the Department of National Defense, Re-
spondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of
Civil Procedure, with a prayer to declare as void Department Circular No. 04 of the
Department of National Defense (DND), dated 10 June 2002.
Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate
body organized under Republic Act No. 2640, dated 18 June 1960, as amended, and
duly registered with the Securities and Exchange Commission. Respondent Angelo
T. Reyes was the Secretary of National Defense (DND Secretary) who issued the
assailed Department Circular No. 04, dated 10 June 2002. Respondent Edgardo E.
Batenga was the DND Undersecretary for Civil Relations and Administration who was
tasked by the respondent DND Secretary to conduct an extensive management audit
of the records of petitioner.
The factual and procedural antecedents of this case are as follows:
Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June
1960.
On 15 April 2002, petitioner’s incumbent president received a letter dated 13 April
2002 which reads:
Col. Emmanuel V. De Ocampo (Ret.)
President
Veterans Federation of the Philippines
Makati, Metro Manila
Dear Col. De Ocampo:
Please be informed that during the preparation of my briefing before the Cabinet
and the President last March 9, 2002, we came across some legal bases which
tended to show that there is an organizational and management relationship be-
tween Veterans Federation of the Philippines and the Philippine Veterans Bank which
for many years have been inadvertently overlooked.
I refer to Republic Act 2640 creating the body corporate known as the VFP and
Republic Act 3518 creating the Phil. Vets [sic] Bank.
1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under
the control and supervision of the Secretary of National Defense."
2. RA 2640 Section 12 ... "On or before the last day of the month following the end
of each fiscal year, the Federation shall make and transmit to the President of the
Philippines or to the Secretary of National Defense, a report of its proceedings for
the past year, including a full, complete and itemized report of receipts and expend-
itures of whatever kind."
3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans
Bank, and for Other Purposes) provides in Section 6 that ... "the affairs and business
of the Philippine Veterans Bank shall be directed and its property managed, con-
trolled and preserved, unless otherwise provided in this Act, by a Board of Directors
consisting of eleven (11) members to be composed of three ex officio members to
wit: the Philippine Veterans Administrator, the President of the Veteran’s Federation
of the Philippines and the Secretary of National Defense x x x.
It is therefore in the context of clarification and rectification of what should have
been done by the DND (Department of National Defense) for and about the VFP and
PVB that I am requesting appropriate information and report about these two cor-
porate bodies.
Therefore it may become necessary that a conference with your staffs in these two
bodies be set.
Thank you and anticipating your action on this request.
Very truly yours,
(SGD) ANGELO T. REYES
[DND] Secretary
On 10 June 2002, respondent DND Secretary issued the assailed DND Department
Circular No. 04 entitled, "Further Implementing the Provisions of Sections 12 and 23
of Republic Act No. 2640," the full text of which appears as follows:
Department of National Defense
Department Circular No. 04
Subject: Further Implementing the Provisions of Sections 1 & 2 of
Republic Act No. 2640
Authority: Republic Act No. 2640
Executive Order No. 292 dated July 25, 1987
Section 1
These rules shall govern and apply to the management and operations of the Vet-
erans Federation of the Philippines (VFP) within the context provided by EO 292 s-
1987.
Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms,
phrases or words used herein shall, unless the context indicates otherwise, mean or
be understood as follows:
Supervision and Control – it shall include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance
of a duty; restrain the commission of acts; approve, reverse or modify acts and
decisions of subordinate officials or units; determine priorities in the execution of
plans and programs; and prescribe standards, guidelines, plans and programs.
Power of Control – power to alter, modify, nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of
the former to that of the latter.
Supervision – means overseeing or the power of an officer to see to it that their
subordinate officers perform their duties; it does not allow the superior to annul the
acts of the subordinate.
Administrative Process – embraces matter concerning the procedure in the disposi-
tion of both routine and contested matters, and the matter in which determinations
are made, enforced or reviewed.
Government Agency – as defined under PD 1445, a government agency or agency
of government or "agency" refers to any department, bureau or office of the national
government, or any of its branches or instrumentalities, of any political subdivision,
as well as any government owned or controlled corporation, including its subsidiar-
ies, or other self-governing board or commission of the government.
Government Owned and Controlled Corporation (GOCC) – refer to any agency orga-
nized as a stock or non-stock corporation, vested with functions relating to public
needs whether governmental or proprietary in nature, and owned by the govern-
ment directly or through its instrumentalities wholly or, where applicable as in the
case of stock corporations, to the extent of at least 50% of its capital stock.
Fund – sum of money or other resources set aside for the purpose of carrying out
specific activities or attaining certain objectives in accordance with special regula-
tions, restrictions or limitations and constitutes an independent, fiscal and account-
ing entity.
Government Fund – includes public monies of every sort and other resources per-
taining to any agency of the government.
Veteran – any person who rendered military service in the land, sea or air forces of
the Philippines during the revolution against Spain, the Philippine American War,
World War II, including Filipino citizens who served in Allied Forces in the Philippine
territory and foreign nationals who served in Philippine forces; the Korean campaign,
the Vietnam campaign, the Anti-dissidence campaign, or other wars or military cam-
paigns; or who rendered military service in the Armed Forces of the Philippines and
has been honorably discharged or separated after at least six (6) years total cumu-
lative active service or sooner separated due to the death or disability arising from
a wound or injury received or sickness or disease incurred in line of duty while in the
active service.
Section 3 – Relationship Between the DND and the VFP
3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans
associations and organizations in the Philippines) and their associates and successors
are hereby created a body corporate, under the control and supervision of the Sec-
retary of National Defense, under the name, style and title of "Veterans Federation
of the Philippines ..."
The Secretary of National Defense shall be charged with the duty of supervising the
veterans and allied program under the jurisdiction of the Department. It shall also
have the responsibility of overseeing and ensuring the judicious and effective imple-
mentation of veterans assistance, benefits, and utilization of VFP assets.
3.2 To effectively supervise and control the corporate affairs of the Federation and
to safeguard the interests and welfare of the veterans who are also wards of the
State entrusted under the protection of the DND, the Secretary may personally or
through a designated representative, require the submission of reports, documents
and other papers regarding any or all of the Federation’s business transactions par-
ticularly those relating to the VFP functions under Section 2 of RA 2640.
The Secretary or his representative may attend conferences of the supreme council
of the VFP and such other activities he may deem relevant.
3.3 The Secretary shall from time to time issue guidelines, directives and other or-
ders governing vital government activities including, but not limited to, the conduct
of elections; the acquisition, management and dispositions of properties, the ac-
counting of funds, financial interests, stocks and bonds, corporate investments, etc.
and such other transactions which may affect the interests of the veterans.
3.4 Financial transactions of the Federation shall follow the provisions of the gov-
ernment auditing code (PD 1445) i.e. government funds shall be spent or used for
public purposes; trust funds shall be available and may be spent only for the specific
purpose for which the trust was created or the funds received; fiscal responsibility
shall, to the greatest extent, be shared by all those exercising authority over the
financial affairs, transactions, and operations of the federation; disbursements or
dispositions of government funds or property shall invariably bear the approval of
the proper officials.
Section 4 – Records of the FEDERATION
As a corporate body and in accordance with appropriate laws, it shall keep and care-
fully preserve records of all business transactions, minutes of meetings of stockhold-
ers/members of the board of directors reflecting all details about such activity.
All such records and minutes shall be open to directors, trustees, stockholders, and
other members for inspection and copies of which may be requested.
As a body corporate, it shall submit the following: annual report; proceedings of
council meetings; report of operations together with financial statement of its assets
and liabilities and fund balance per year; statement of revenues and expenses per
year; statement of cash flows per year as certified by the accountant; and other
documents/reports as may be necessary or required by the SND.
Section 5 – Submission of Annual and Periodic Report
As mandated under appropriate laws, the following reports shall be submitted to the
SND, to wit:
a. Annual Report to be submitted not later than every January 31 of the following
year. Said report shall consist of the following:
1. Financial Report of the Federation, signed by the Treasurer General and Auditor
General;
2. Roster of Members of the Supreme Council;
3. Roster of Members of the Executive Board and National Officers; and
4. Current listing of officers and management of VFP.
b. Report on the proceedings of each Supreme Council Meeting to be submitted not
later than one month after the meeting;
c. Report of the VFP President as may be required by SND or as may be found
necessary by the President of the Federation;
d. Resolutions passed by the Executive Board and the Supreme Council for confir-
mation to be submitted not later than one month after the approval of the resolution;
e. After Operation/Activity Reports to be submitted not later than one month after
such operation or activity;
Section 6 – Penal Sanctions
As an attached agency to a regular department of the government, the VFP and all
its instrumentalities, officials and personnel shall be subject to the penal provisions
of such laws, rules and regulations applicable to the attached agencies of the gov-
ernment.
In a letter dated 6 August 2002 addressed to the President of petitioner, respondent
DND Secretary reiterated his instructions in his earlier letter of 13 April 2002.
Thereafter, petitioner’s President received a letter dated 23 August 2002 from re-
spondent Undersecretary, informing him that Department Order No. 129 dated 23
August 2002 directed "the conduct of a Management Audit of the Veterans Federa-
tion of the Philippines."4 The letter went on to state that respondent DND Secretary
"believes that the mandate given by said law can be meaningfully exercised if this
department can better appreciate the functions, responsibilities and situation on the
ground and this can be done by undertaking a thorough study of the organization."5
Respondent Undersecretary also requested both for a briefing and for documents on
personnel, ongoing projects and petitioner’s financial condition. The letter ended by
stating that, after the briefing, the support staff of the Audit Committee would begin
their work to meet the one-month target within which to submit a report.
A letter dated 28 August 2003 informed petitioner’s President that the Management
Audit Group headed by the Undersecretary would be paying petitioner a visit on 30
August 2002 for an update on VFP’s different affiliates and the financial statement
of the Federation.
Subsequently, the Secretary General of the VFP sent an undated letter to respondent
DND Secretary, with notice to respondent Undersecretary for Civil Relations and Ad-
ministration, complaining about the alleged broadness of the scope of the manage-
ment audit and requesting the suspension thereof until such time that specific areas
of the audit shall have been agreed upon.
The request was, however, denied by the Undersecretary in a letter dated 4 Sep-
tember 2002 on the ground that a specific timeframe had been set for the activity.
Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the
1997 Rules of Civil Procedure, praying for the following reliefs:
1. For this Court to issue a temporary restraining order and a writ of preliminary
prohibitory and mandatory injunction to enjoin respondent Secretary and all those
acting under his discretion and authority from: (a) implementing DND Department
Circular No. 04; and (b) continuing with the ongoing management audit of peti-
tioner’s books of account;
2. After hearing the issues on notice –
a. Declare DND Department Circular No. 04 as null and void for being ultra vires;
b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction
into a permanent one.6
GIVING DUE COURSE TO THE PETITION
Petitioner asserts that, although cases which question the constitutionality or validity
of administrative issuances are ordinarily filed with the lower courts, the urgency
and substantive importance of the question on hand and the public interest at-
tendant to the subject matter of the petition justify its being filed with this Court
directly as an original action.7
It is settled that the Regional Trial Court and the Court of Appeals also exercise
original jurisdiction over petitions for certiorari and prohibition. As we have held in
numerous occasions, however, such concurrence of original jurisdiction does not
mean that the party seeking extraordinary writs has the absolute freedom to file his
petition in the court of his choice.8 Thus, in Commissioner of Internal Revenue v.
Leal,9 we held that:
Such concurrence of original jurisdiction among the Regional Trial Court, the Court
of Appeals and this Court, however, does not mean that the party seeking any of
the extraordinary writs has the absolute freedom to file his petition in the court of
his choice. The hierarchy of courts in our judicial system determines the appropriate
forum for these petitions. Thus, petitions for the issuance of the said writs against
the first level (inferior) courts must be filed with the Regional Trial Court and those
against the latter, with the Court of Appeals. A direct invocation of this Court’s orig-
inal jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, specifically and sufficiently set forth in the petition.
This is the established policy to prevent inordinate demands upon the Court’s time
and attention, which are better devoted to matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court’s docket. Thus, it was proper for
petitioner to institute the special civil action for certiorari with the Court of Appeals
assailing the RTC order denying his motion to dismiss based on lack of jurisdiction.
The petition itself, in this case, does not specifically and sufficiently set forth the
special and important reasons why the Court should give due course to this petition
in the first instance, hereby failing to fulfill the conditions set forth in Commissioner
of Internal Revenue v. Leal.10 While we reiterate the policies set forth in Leal and
allied cases and continue to abhor the propensity of a number of litigants to disre-
gard the principle of hierarchy of courts in our judicial system, we, however, resolve
to take judicial notice of the fact that the persons who stand to lose in a possible
protracted litigation in this case are war veterans, many of whom have precious little
time left to enjoy the benefits that can be conferred by petitioner corporation. This
bickering for the power over petitioner corporation, an entity created to represent
and defend the interests of Filipino veterans, should be resolved as soon as possible
in order for it to once and for all direct its resources to its rightful beneficiaries all
over the country. All these said, we hereby resolve to give due course to this petition.
ISSUES
Petitioner mainly alleges that the rules and guidelines laid down in the assailed De-
partment Circular No. 04 expanded the scope of "control and supervision" beyond
what has been laid down in Rep. Act No. 2640.11 Petitioner further submits the fol-
lowing issues to this Court:
1. Was the challenged department circular passed in the valid exercise of the re-
spondent Secretary’s "control and supervision"?
2. Could the challenged department circular validly lay standards classifying the VFP,
an essentially civilian organization, within the ambit of statutes only applying to gov-
ernment entities?
3. Does the department circular, which grants respondent direct management con-
trol on the VFP, unduly encroach on the prerogatives of VFP’s governing body?
At the heart of all these issues and all of petitioner’s prayers and assertions in this
case is petitioner’s claim that it is a private non-government corporation.
CENTRAL ISSUE:
IS THE VFP A PRIVATE CORPORATION?
Petitioner claims that it is not a public nor a governmental entity but a private or-
ganization, and advances this claim to prove that the issuance of DND Department
Circular No. 04 is an invalid exercise of respondent Secretary’s control and supervi-
sion.12
This Court has defined the power of control as "the power of an officer to alter or
modify or nullify or set aside what a subordinate has done in the performance of his
duties and to substitute the judgment of the former to that of the latter."13 The
power of supervision, on the other hand, means "overseeing, or the power or au-
thority of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, the former may take such action or step as prescribed
by law to make them perform their duties."14 These definitions are synonymous with
the definitions in the assailed Department Circular No. 04, while the other provisions
of the assailed department circular are mere consequences of control and supervi-
sion as defined.
Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners
should be deemed to imply either of the following: (1) that it is unconstitutional/im-
permissible for the law (Rep. Act No. 2640) to grant control and/or supervision to
the Secretary of National Defense over a private organization, or (2) that the control
and/or supervision that can be granted to the Secretary of National Defense over a
private organization is limited, and is not as strong as they are defined above.
The following provision of the 1935 Constitution, the organic act controlling at the
time of the creation of the VFP in 1960, is relevant:
Section 7. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are
owned and controlled by the Government or any subdivision or instrumentality
thereof.15
On the other hand, its counterparts in the 1973 and 1987 constitutions are the fol-
lowing:
Section 4. The National Assembly shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such corpora-
tions are owned or controlled by the government or any subdivision or instrumen-
tality thereof.16
Sec. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned and con-
trolled corporations may be created or established by special charters in the interest
of the common good and subject to the test of economic viability.17
From the foregoing, it is crystal clear that our constitutions explicitly prohibit the
regulation by special laws of private corporations, with the exception of government-
owned or controlled corporations (GOCCs). Hence, it would be impermissible for the
law to grant control of the VFP to a public official if it were neither a public corpora-
tion, an unincorporated governmental entity, nor a GOCC.18 Said constitutional pro-
visions can even be read to prohibit the creation itself of the VFP if it were neither
of the three mentioned above, but we cannot go into that in this case since there is
no challenge to the creation of the VFP in the petition as to permit this Court from
considering its nullity.
Petitioner vigorously argues that the VFP is a private non-government organization,
pressing on the following contentions:
1. The VFP does not possess the elements which would qualify it as a public office,
particularly the possession/delegation of a portion of sovereign power of government
to be exercised for the benefit of the public;
2. VFP funds are not public funds because –
a) No budgetary appropriations or government funds have been released to the VFP
directly or indirectly from the Department of Budget and Management (DBM);
b) VFP funds come from membership dues;
c) The lease rentals raised from the use of government lands reserved for the VFP
are private in character and do not belong to the government. Said rentals are fruits
of VFP’s labor and efforts in managing and administering the lands for VFP purposes
and objectives. A close analogy would be any Filipino citizen settling on government
land and who tills the land for his livelihood and sustenance. The fruits of his labor
belong to him and not to the owner of the land. Such fruits are not public funds.
3. Although the juridical personality of the VFP emanates from a statutory charter,
the VFP retains its essential character as a private, civilian federation of veterans
voluntarily formed by the veterans themselves to attain a unity of effort, purpose
and objectives, e.g. –
a. The members of the VFP are individual members and retirees from the public and
military service;
b. Membership in the VFP is voluntary, not compulsory;
c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the
GSIS Law, but by the Labor Code and the SSS Law;
d. The VFP has its own Constitution and By-Laws and is governed by a Supreme
Council who are elected from and by the members themselves;
4. The Administrative Code of 1987 does not provide that the VFP is an attached
agency, nor does it provide that it is an entity under the control and supervision of
the DND in the context of the provisions of said code.
5. The DBM declared that the VFP is a non-government organization and issued a
certificate that the VFP has not been a direct recipient of any funds released by the
DBM.
These arguments of petitioner notwithstanding, we are constrained to rule that pe-
titioner is in fact a public corporation. Before responding to petitioner’s allegations
one by one, here are the more evident reasons why the VFP is a public corporation:
(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known
as the Veterans Federation of the Philippines, Defining its Powers, and for Other
Purposes."
(2) Any action or decision of the Federation or of the Supreme Council shall be
subject to the approval of the Secretary of Defense.19
(3) The VFP is required to submit annual reports of its proceedings for the past year,
including a full, complete and itemized report of receipts and expenditures of what-
ever kind, to the President of the Philippines or to the Secretary of National De-
fense.20
(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as
among the government-owned and controlled corporations that will not be privat-
ized.
(5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC,21 this Court held in a
minute resolution that the "VFP [Veterans Federation Party] is an adjunct of the
government, as it is merely an incarnation of the Veterans Federation of the Philip-
pines.
And now to answer petitioner’s reasons for insisting that it is a private corporation:
1. Petitioner claims that the VFP does not possess the elements which would qualify
it as a public office, particularly the possession/delegation of a portion of sovereign
power of government to be exercised for the benefit of the public;
In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that
it 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 govern-
ment, to be exercised by him for the benefit of the public."
In the same case, we went on to adopt Mechem’s view that the delegation to the
individual of some of the sovereign functions of government is "[t]he most important
characteristic" in determining whether a position is a public office or not.23 Such
portion of the sovereignty of the country, either legislative, executive or judicial,
must attach to the office for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is not a public officer.
The most important characteristic which distinguishes an office from an employment
or contract is that the creation and conferring of an office involves a delegation to
the individual of some of the sovereign functions of government, to be exercised by
him for the benefit of the public; – that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of this nature, the
individual is not a public officer.24 The issue, therefore, is whether the VFA’s officers
have been delegated some portion of the sovereignty of the country, to be exercised
for the public benefit.
In several cases, we have dealt with the issue of whether certain specific activities
can be classified as sovereign functions. These cases, which deal with activities not
immediately apparent to be sovereign functions, upheld the public sovereign nature
of operations needed either to promote social justice25 or to stimulate patriotic sen-
timents and love of country.26
As regards the promotion of social justice as a sovereign function, we held in Agri-
cultural Credit and Cooperative Financing Administration (ACCFA) v. Confederation
of Unions in Government Corporations and Offices (CUGCO),27 that the compelling
urgency with which the Constitution speaks of social justice does not leave any doubt
that land reform is not an optional but a compulsory function of sovereignty. The
same reason was used in our declaration that socialized housing is likewise a sover-
eign function.28 Highly significant here is the observation of former Chief Justice
Querube Makalintal:
The growing complexities of modern society, however, have rendered this traditional
classification of the functions of government [into constituent and ministrant func-
tions] quite unrealistic, not to say obsolete. The areas which used to be left to private
enterprise and initiative and which the government was called upon to enter option-
ally, and only "because it was better equipped to administer for the public welfare
than is any private individual or group of individuals," continue to lose their well-
defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of
the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards
a greater socialization of economic forces. Here, of course, this development was
envisioned, indeed adopted as a national policy, by the Constitution itself in its dec-
laration of principle concerning the promotion of social justice.29 (Emphasis sup-
plied.)
It was, on the other hand, the fact that the National Centennial Celebrations was
calculated to arouse and stimulate patriotic sentiments and love of country that it
was considered as a sovereign function in Laurel v. Desierto.30 In Laurel, the Court
then took its cue from a similar case in the United States involving a Fourth of July
fireworks display. The holding of the Centennial Celebrations was held to be an ex-
ecutive function, as it was intended to enforce Article XIV of the Constitution which
provides for the conservation, promotion and popularization of the nation’s historical
and cultural heritage and resources, and artistic relations.
In the case at bar, the functions of petitioner corporation enshrined in Section 4 of
Rep. Act No. 264031 should most certainly fall within the category of sovereign func-
tions. The protection of the interests of war veterans is not only meant to promote
social justice, but is also intended to reward patriotism. All of the functions in Section
4 concern the well-being of war veterans, our countrymen who risked their lives and
lost their limbs in fighting for and defending our nation. It would be injustice of
catastrophic proportions to say that it is beyond sovereignty’s power to reward the
people who defended her.
Like the holding of the National Centennial Celebrations, the functions of the VFP
are executive functions, designed to implement not just the provisions of Rep. Act
No. 2640, but also, and more importantly, the Constitutional mandate for the State
to provide immediate and adequate care, benefits and other forms of assistance to
war veterans and veterans of military campaigns, their surviving spouses and or-
phans.32
2. Petitioner claims that VFP funds are not public funds.
Petitioner claims that its funds are not public funds because no budgetary appropri-
ations or government funds have been released to the VFP directly or indirectly from
the DBM, and because VFP funds come from membership dues and lease rentals
earned from administering government lands reserved for the VFP.
The fact that no budgetary appropriations have been released to the VFP does not
prove that it is a private corporation. The DBM indeed did not see it fit to propose
budgetary appropriations to the VFP, having itself believed that the VFP is a private
corporation.33 If the DBM, however, is mistaken as to its conclusion regarding the
nature of VFP’s incorporation, its previous assertions will not prevent future budget-
ary appropriations to the VFP. The erroneous application of the law by public officers
does not bar a subsequent correct application of the law.34
Nevertheless, funds in the hands of the VFP from whatever source are public funds,
and can be used only for public purposes. This is mandated by the following provi-
sions of Rep. Act No. 2640:
(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit
of the Veterans of the Philippines;"
(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of
the Supreme Council shall be subject to the approval of the Secretary of National
Defense." Hence, all activities of the VFP to which the Supreme Council can apply
its funds are subject to the approval of the Secretary of National Defense;
(3) Section 4 provides that "the Federation shall exist solely for the purposes of a
benevolent character, and not for the pecuniary benefit of its members;"1avvphil.net
(4) Section 6 provides that all funds of the VFP in excess of operating expenses are
"reserved for disbursement, as the Supreme Council may authorize, for the purposes
stated in Section two of this Act;"
(5) Section 10 provides that "(a)ny donation or contribution which from time to time
may be made to the Federation by the Government of the Philippines or any of its
subdivisions, branches, offices, agencies or instrumentalities shall be expended by
the Supreme Council only for the purposes mentioned in this Act."; and finally,
(6) Section 12 requires the submission of annual reports of VFP proceedings for the
past year, including a full, complete and itemized report of receipts and expenditures
of whatever kind, to the President of the Philippines or to the Secretary of National
Defense.
It is important to note here that the membership dues collected from the individual
members of VFP’s affiliate organizations do not become public funds while they are
still funds of the affiliate organizations. A close reading of Section 135 of Rep. Act No.
2640 reveals that what has been created as a body corporate is not the individual
membership of the affiliate organizations, but merely the aggregation of the heads
of the affiliate organizations. Thus, only the money remitted by the affiliate organi-
zations to the VFP partake in the public nature of the VFP funds.
In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds
because, inter alia, (1) they were meant to be for the benefit of the coconut industry,
one of the major industries supporting the national economy, and its farmers; and
(2) the very laws governing coconut levies recognize their public character. The
same is true with regard to the VFP funds. No less public is the use for the VFP
funds, as such use is limited to the purposes of the VFP which we have ruled to be
sovereign functions. Likewise, the law governing VFP funds (Rep. Act No. 2640)
recognizes the public character of the funds as shown in the enumerated provisions
above.
We also observed in the same COCOFED case that "(e)ven if the money is allocated
for a special purpose and raised by special means, it is still public in character."37 In
the case at bar, some of the funds were raised by even more special means, as the
contributions from affiliate organizations of the VFP can hardly be regarded as en-
forced contributions as to be considered taxes. They are more in the nature of do-
nations which have always been recognized as a source of public funding. Affiliate
organizations of the VFP cannot complain of their contributions becoming public
funds upon the receipt by the VFP, since they are presumed aware of the provisions
of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP
funds can be used, but also provides for the regulation of such funds by the national
government through the Secretary of National Defense. There is nothing wrong,
whether legally or morally, from raising revenues through non-traditional methods.
As remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan,
Incorporated v. Guingona, Jr.38 where he explained that the funds raised by the On-
line Lottery System were also public in nature, thus:
x x x [T]he more successful the government is in raising revenues by non-traditional
methods such as PAGCOR operations and privatization measures, the lesser will be
the pressure upon the traditional sources of public revenues, i.e., the pocket books
of individual taxpayers and importers.
Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto39
which was cited by Respondents. Petitioner claims that among the reasons National
Centennial Commission Chair Salvador Laurel was considered a public officer was
the fact that his compensation was derived from public funds. Having ruled that VFP
funds from whatever source are public funds, we can safely conclude that the Su-
preme Council’s compensation, taken as they are from VFP funds under the term
"operating expenses" in Section 6 of Rep. Act No. 2640, are derived from public
funds. The particular nomenclature of the compensation taken from VFP funds is not
even of relevance here. As we said in Laurel concerning compensation as an element
of public office:
Under particular circumstances, "compensation" has been held to include allowance
for personal expenses, commissions, expenses, fees, an honorarium, mileage or
traveling expenses, payments for services, restitution or a balancing of accounts,
salary, and wages.40
3. Petitioner argues that it is a civilian federation where membership is voluntary.
Petitioner claims that the Secretary of National Defense "historically did not indulge
in the direct or ‘micromanagement’ of the VFP precisely because it is essentially a
civilian organization where membership is voluntary."41 This reliance of petitioner on
what has "historically" been done is erroneous, since laws are not repealed by dis-
use, custom, or practice to the contrary.42 Furthermore, as earlier stated, the erro-
neous application of the law by public officers does not bar a subsequent correct
application of the law.43
Neither is the civilian nature of VFP relevant in this case. The Constitution does not
contain any prohibition, express or implied, against the grant of control and/or su-
pervision to the Secretary of National Defense over a civilian organization. The Office
of the Secretary of National Defense is itself a civilian office, its occupant being an
alter ego of the civilian Commander-in-Chief. This set-up is the manifestation of the
constitutional principle that civilian authority is, at all times, supreme over the mili-
tary.44 There being no such constitutional prohibition, the creation of a civilian public
organization by Rep. Act No. 2640 is not rendered invalid by its being placed under
the control and supervision of the Secretary of National Defense.
Petitioner’s stand that the VFP is a private corporation because membership thereto
is voluntary is likewise erroneous. As stated above, the membership of the VFP is
not the individual membership of the affiliate organizations, but merely the aggre-
gation of the heads of such affiliate organizations. These heads forming the VFP
then elect the Supreme Council and the other officers,45 of this public corporation.
4. Petitioner claims that the Administrative Code of 1987 does not provide that the
VFP is an attached agency, and nor does it provide that it is an entity under the
control and supervision of the DND in the context of the provisions of said code.
The Administrative Code, by giving definitions of the various entities covered by it,
acknowledges that its enumeration is not exclusive. The Administrative Code could
not be said to have repealed nor enormously modified Rep. Act No. 2640 by impli-
cation, as such repeal or enormous modification by implication is not favored in
statutory construction.46
5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government
organization in its certification that the VFP "has not been a direct recipient of any
funds released by the DBM."
Respondents claim that the supposed declaration of the DBM that petitioner is a
non-government organization is not persuasive, since DBM is not a quasi-judicial
agency. They aver that what we have said of the Bureau of Local Government Fi-
nance (BLGF) in Philippine Long Distance Telephone Company (PLDT) v. City of Da-
vao47 can be applied to DBM:
In any case, it is contended, the ruling of the Bureau of Local Government Finance
(BLGF) that petitioner’s exemption from local taxes has been restored is a contem-
poraneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to
great weight.
The ruling of the BLGF has been considered in this case. But unlike the Court of Tax
Appeals, which is a special court created for the purpose of reviewing tax cases, the
BLGF was created merely to provide consultative services and technical assistance
to local governments and the general public on local taxation and other related mat-
ters. Thus, the rule that the "Court will not set aside conclusions rendered by the
CTA, which is, by the very nature of its function, dedicated exclusively to the study
and consideration of tax problems and has necessarily developed an expertise on
the subject, unless there has been an abuse or improvident exercise of authority"
cannot apply in the case of the BLGF.
On this score, though, we disagree with respondents and hold that the DBM’s ap-
praisal is considered persuasive. Respondents misread the PLDT case in asserting
that only quasi-judicial agencies’ determination can be considered persuasive. What
the PLDT case points out is that, for an administrative agency’s opinion to be per-
suasive, the administrative agency involved (whether it has quasi-judicial powers or
not) must be an expert in the field they are giving their opinion on.
The DBM is indeed an expert on determining what the various government agencies
and corporations are. This determination is necessary for the DBM to fulfill its man-
date:
Sec. 2. Mandate. - The Department shall be responsible for the formulation and
implementation of the National Budget with the goal of attaining our national socio-
economic plans and objectives.
The Department shall be responsible for the efficient and sound utilization of gov-
ernment funds and revenues to effectively achieve our country's development ob-
jectives.48
The persuasiveness of the DBM opinion has, however, been overcome by all the
previous explanations we have laid so far. It has also been eclipsed by another sim-
ilarly persuasive opinion, that of the Department of National Defense embodied in
Department Circular No. 04. The DND is clearly more of an expert with respect to
the determination of the entities under it, and its Administrative Rules and Regula-
tions are entitled to great respect and have in their favor the presumption of legal-
ity.49
The DBM opinion furthermore suffers from its lack of explanation and justification in
the "certification of non-receipt" where said opinion was given. The DBM has not
furnished, in said certification or elsewhere, an explanation for its opinion that VFP
is a non-government organization.
THE FATE OF DEPARTMENT CIRCULAR NO. 04
Our ruling that petitioner is a public corporation is determinative of whether or not
we should grant petitioner’s prayer to declare Department Circular No. 04 void.
Petitioner assails Department Circular No. 04 on the ground that it expanded the
scope of control and supervision beyond what has been laid down in Rep. Act No.
2640. Petitioner alleges that "(t)he equation of the meaning of `control’ and `su-
pervision’ of the Administrative Code of 1987 as the same `control and supervision’
under Rep. Act No. 2640, takes out the context of the original legislative intent from
the peculiar surrounding circumstances and conditions that brought about the crea-
tion of the VFP."50 Petitioner claims that the VFP "was intended as a self-governing
autonomous body with a Supreme Council as governing authority," and that the
assailed circular "pre-empts VFP’s original self-governance and autonomy (in) rep-
resenting veterans organizations, and substitutes government discretion and deci-
sions to that of the veterans’ own determination."51 Petitioner says that the circular’s
provisions practically render the Supreme Council inutile, despite its being the stat-
utory governing body of the VFP.52
As previously mentioned, this Court has defined the power of control as "the power
of an officer to alter or modify or nullify or set aside what a subordinate has done in
the performance of his duties and to substitute the judgment of the former to that
of the latter."53 The power of supervision, on the other hand, means "overseeing, or
the power or authority of an officer to see that subordinate officers perform their
duties."54 Under the Administrative Code of 1987:55
Supervision and control shall include the authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance
of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution
of plans and programs; and prescribe standards, guidelines, plans and programs. x
xx
The definition of the power of control and supervision under Section 2 of the assailed
Department Circular are synonymous with the foregoing definitions. Consequently,
and considering that petitioner is a public corporation, the provisions of the assailed
Department Circular No. 04 did not supplant nor modify the provisions of Republic
Act No. 2640, thus not violating the settled rule that "all such (administrative) issu-
ances must not override, but must remain consistent and in harmony with the law
they seek to apply or implement. Administrative rules and regulations are intended
to carry out, neither to supplant nor to modify, the law."56
Section 3.2 of the assailed department circular, which authorizes the Secretary of
National Defense to "x x x personally or through a designated representative, require
the submission of reports, documents and other papers regarding any or all of the
Federation’s business functions, x x x."
as well as Section 3.3 which allows the Secretary of DND to
x x x [F]rom time to time issue guidelines, directives and other orders governing
vital government activities including, but not limited to, the conduct of elections, the
acquisition, management and dispositions of properties, the accounting of funds,
financial interests, stocks and bonds, corporate investments, etc. and such other
transactions which may affect the interests of the veterans.
are merely consequences of both the power of control and supervision granted by
Rep. Act No. 2640. The power to alter or modify or nullify or set aside what a sub-
ordinate has done in the performance of his duties, or to see to it that subordinate
officers perform their duties in accordance with law, necessarily requires the ability
of the superior officer to monitor, as closely as it desires, the acts of the subordinate.
The same is true with respect to Sections 4 and 5 of the assailed Department Circular
No. 04, which requires the preservation of the records of the Federation and the
submission to the Secretary of National Defense of annual and periodic reports.
Petitioner likewise claims that the assailed DND Department Circular No. 04 was
never published, and hence void.57 Respondents deny such non-publication.58
We have put forth both the rule and the exception on the publication of administra-
tive rules and regulations in the case of Tañada v. Tuvera:59
x x x Administrative rules and regulations must also be published if their purpose is
to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating
only the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so-called letters of instructions is-
sued by administrative superiors concerning the rules on guidelines to be followed
by their subordinates in the performance of their duties.
Even assuming that the assailed circular was not published, its validity is not affected
by such non-publication for the reason that its provisions fall under two of the ex-
ceptions enumerated in Tañada.
Department Circular No. 04 is an internal regulation. As we have ruled, they are
meant to regulate a public corporation under the control of DND, and not the public
in general. As likewise discussed above, what has been created as a body corporate
by Rep. Act No. 2640 is not the individual membership of the affiliate organizations
of the VFP, but merely the aggregation of the heads of the affiliate organizations.
Consequently, the individual members of the affiliate organizations, who are not
public officers, are beyond the regulation of the circular.
Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in
nature. They add nothing to the law. They do not affect the substantial rights of any
person, whether party to the case at bar or not. In Sections 2 and 3, control and
supervision are defined, mentioning actions that can be performed as consequences
of such control and supervision, but without specifying the particular actions that
shall be rendered to control and supervise the VFP. Section 6, in the same vein,
merely state what the drafters of the circular perceived to be consequences of being
an attached agency to a regular department of the government, enumerating sanc-
tions and remedies provided by law that may be availed of whenever desired.
Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department
Circular, which provides that –
3.4 Financial transactions of the Federation shall follow the provisions of the gov-
ernment auditing code (PD 1445) i.e. government funds shall be spent or used for
public purposes; trust funds shall be available and may be spent only for the specific
purpose for which the trust was created or the funds received; fiscal responsibility
shall, to the greatest extent, be shared by all those exercising authority over the
financial affairs, transactions, and operations of the federation; disbursements or
dispositions of government funds or property shall invariably bear the approval of
the proper officials.
Since we have also previously determined that VFP funds are public funds, there is
likewise no reason to declare this provision invalid. Section 3.4 is correct in requiring
the VFP funds to be used for public purposes, but only insofar the term "public
purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640."
Having in their possession public funds, the officers of the VFP, especially its fiscal
officers, must indeed share in the fiscal responsibility to the greatest extent.
As to petitioner’s allegation that VFP was intended as a self-governing autonomous
body with a Supreme Council as governing authority, we find that the provisions of
Rep. Act No. 2640 concerning the control and supervision of the Secretary of Na-
tional Defense clearly withholds from the VFP complete autonomy. To say, however,
that such provisions render the VFP inutile is an exaggeration. An office is not ren-
dered inutile by the fact that it is placed under the control of a higher office. These
subordinate offices, such as the executive offices under the control of the President,
exercise discretion at the first instance. While their acts can be altered or even set
aside by the superior, these acts are effective and are deemed the acts of the supe-
rior until they are modified. Surely, we cannot say that the offices of all the Depart-
ment Secretaries are worthless positions.
In sum, the assailed DND Department Circular No. 04 does not supplant nor modify
and is, on the contrary, perfectly in consonance with Rep. Act No. 2640. Petitioner
VFP is a public corporation. As such, it can be placed under the control and supervi-
sion of the Secretary of National Defense, who consequently has the power to con-
duct an extensive management audit of petitioner corporation.
WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the
Department of National Defense Department Circular No. 04 is AFFIRMED.
SO ORDERED.
EN BANC
G.R. No. 95237-38 September 13, 1991
DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER
DISTRICT, METRO CEBU WATER DISTRICT, ZAMBOANGA CITY WATER
DISTRICT, LEYTE METRO WATER DISTRICT, BUTUAN CITY WATER
DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA WATER
DISTRICT, DUMAGUETE CITY WATER DISTRICT, LA UNION WATER
DISTRICT, BAYBAY WATER DISTRICT, METRO LINGAYEN WATER
DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY WATER
DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER DISTRICT, DIGOS
WATER DISTRICT, BISLIG WATER DISTRICT, and MECAUAYAN WATER
DISTRICT, petitioners,
vs.
CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents.
Rodolfo S. De Jesus for petitioners.
Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC.
MEDIALDEA, J.:p
Whether or not the Local Water Districts formed and created pursuant to the provi-
sions of Presidential Decree No. 198, as amended, are government-owned or con-
trolled corporations with original charter falling under the Civil Service Law and/or
covered by the visitorial power of the Commission on Audit is the issue which the
petitioners entreat this Court, en banc, to shed light on.
Petitioners are among the more than five hundred (500) water districts existing
throughout the country formed pursuant to the provisions of Presidential Decree No.
198, as amended by Presidential Decrees Nos. 768 and 1479, otherwise known as
the "Provincial Water Utilities Act of 1973."
Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos
by virtue of his legislative power under Proclamation No. 1081. It authorized the
different local legislative bodies to form and create their respective water districts
through a resolution they will pass subject to the guidelines, rules and regulations
therein laid down. The decree further created and formed the "Local Water Utilities
Administration" (LWUA), a national agency attached to the National Economic and
Development Authority (NEDA), and granted with regulatory power necessary to
optimize public service from water utilities operations.
The respondents, on the other hand, are the Civil Service Commission (CSC) and the
Commission on Audit (COA), both government agencies and represented in this case
by the Solicitor General.
On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton,
et al. (G.R. No. 63742, 172 SCRA 253):
Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides that the
Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of
the government, including government-owned and controlled corporations with orig-
inal charters. Inasmuch as PD No. 198, as amended, is the original charter of the
petitioner, Tanjay Water District, and respondent Tarlac Water District and all water
districts in the country, they come under the coverage of the Civil Service Law, rules
and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD No. 807).
As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-
575, the dispositive portion of which reads:
NOW THEREFORE, in view of all the foregoing, the Commission resolved, as it hereby
resolves to rule that Local Water Districts, being quasi-public corporations created
by law to perform public services and supply public wants, the matter of hiring and
firing of its officers and employees should be governed by the Civil Service Law,
rules and regulations. Henceforth, all appointments of personnel of the different local
water districts in the country shall be submitted to the Commission for appropriate
action. (Rollo. p. 22).
However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District
v. National Labor Relations Commission, et al.," the Third Division of this Court ruled
in a minute resolution:
xxx xxx xxx
Considering that PD 198 is a general legislation empowering and/or authorizing gov-
ernment agencies and entities to create water districts, said PD 198 cannot be con-
sidered as the charter itself creating the Water District. Public respondent NLRC did
not commit any grave abuse of discretion in holding that the operative act, that
created the Metro Iloilo Water District was the resolution of the Sangguniang Pan-
glunsod of Iloilo City. Hence, the employees of Water Districts are not covered by
Civil Service Laws as the latter do (sic) not have original charters.
In adherence to the just cited ruling, the CSC suspended the implementation of
Resolution No. 90-575 by issuing Resolution No. 90-770 which reads:
xxx xxx xxx
NOW, THEREFORE, in view of all the foregoing, the Commission resolved to rule, as
it hereby rules, that the implementation of CSC. Resolution No. 575 dated June 27,
1990 be deferred in the meantime pending clarification from the Supreme Court are
regards its conflicting decisions in the cases of Tanjay Water District v. Gabaton and
Metro Iloilo Water District v. National Labor Relations Commission. (p. 26, Rollo)
In the meanwhile, there exists a divergence of opinions between COA on one hand,
and the (LWUA), on the other hand, with respect to the authority of COA to audit
the different water districts.
COA opined that the audit of the water districts is simply an act of discharging the
visitorial power vested in them by law (letter of COA to LWUA dated August 13,
1985, pp. 29-30, Rollo).
On the other hand, LWUA maintained that only those water districts with subsidies
from the government fall within the COA's jurisdiction and only to the extent of the
amount of such subsidies, pursuant to the provision of the Government Auditing
Code of the Phils.
It is to be observed that just like the question of whether the employees of the water
districts falls under the coverage of the Civil Service Law, the conflict between the
water districts and the COA is also dependent on the final determination of whether
or not water districts are government-owned or controlled corporations with original
charter. The reason behind this is Sec. 2(1), Article IX-D of the 1987 constitution
which reads:
Sec. 2(1) The Commission on Audit shall have the power, authority, and duty to
examine, audit, and settle all accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property, owned or held in trust by, or per-
taining to the Government, or any of its subdivisions, agencies or instrumentalities,
including government-owned or controlled corporations with original charters, and
on a post audit basis. (emphasis supplied)
Petitioners' main argument is that they are private corporations without original
charter, hence they are outside the jurisdiction of respondents CSC and COA. Reli-
ance is made on the Metro Iloilo case which declared petitioners as quasi-public
corporations created by virtue of PD 198, a general legislation which cannot be con-
sidered as the charter itself creating the water districts. Holding on to this ruling,
petitioners contend that they are private corporations which are only regarded as
quasi-public or semi-public because they serve public interest and convenience and
that since PD 198 is a general legislation, the operative act which created a water
district is not the said decree but the resolution of the sanggunian concerned.
After a fair consideration of the parties' arguments coupled with a careful study of
the applicable laws as well as the constitutional provisions involved, We rule against
the petitioners and reiterate Our ruling in Tanjay case declaring water districts gov-
ernment-owned or controlled corporations with original charter.
As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20,
1984, 127 SCRA 730), We already ruled that a water district is a corporation created
pursuant to a special law — P.D. No. 198, as amended, and as such its officers and
employees are covered by the Civil Service Law.
In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988,
165 SCRA 272), We ruled once again that local water districts are quasi-public cor-
porations whose employees belong to the Civil Service. The Court's pronoucement
in this case, as extensively quoted in the Tanjay case, supra, partly reads:
"The only question here is whether or not local water districts are governmkent
owned or controlled corporations whose employees are subject to the provisions of
the Civil Service Law. The Labor Arbiter asserted jurisdiction over the alleged illegal
dismissal of private respondent Villanueva by relying on Section 25 of Presidential
decree No. 198, known as the Provincial Water Utilities Act of 1973" which went onto
effect in 25 May 1973, and which provides as follows:
Exemption from Civil Service. — The district and its employees, being engaged in a
proprietary function, are hereby exempt from the provisions of the Civil Service Law.
Collective Bargaining shall be available only to personnel below supervisory levels:
Provided, however, That the total of all salaries, wages emoluments, benefits or
other compensation paid to all employees in any month shall not exceed fifty percent
(50%) of average net monthy revenue. Said net revenue representing income from
water sales and sewerage service charges, less pro-rata share of debt service and
expenses for fuel or energy for pumping during the preceding fiscal year.
The Labor Arbiter failed to take into accout the provisions of Presidential Decree No.
1479, which went into effect on 11 June 1978, P.D. No. 1479, wiped away Section
25 of PD 198 quoted above, and Section 26 of PD 198 was renumbered as Section
25 in the following manner:
Section 26 of the same decree PD 198 is hereby amended to read as Section 25 as
follows:
Section 25. Authorization. — The district may exercise all the powers which are ex-
pressly granted by this Title or which are necessarily implied from or incidental to
the powers and purposes herein stated. For the purpose of carrying out the objec-
tives of this Act, a district is hereby granted the power of eminent domain, the ex-
ercise thereof shall, however, be subject to review by the Administration.
Thus, Section 25 of PD 198 exempting the employees of water districts from the
application of the Civil Service Law was removed from the statute books:
xxx xxx xxx
We grant the petition for the following reasons:
1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479; Section 26
of PD No. 198 was amended ro read as Sec. 25 by Sec. 4 of PD No. 1479. The
amendatory decree took effect on June 11, 1978.
xxx xxx xxx
3. The BWD is a corporation created pursuant to a special law — PD No. 198, as
amended. As such its officers and employees are part of the Civil Service (Sec. 1,
Art. XII-B, [1973] Constitution; PD No. 868).
Ascertained from a consideration of the whole statute, PD 198 is a special law appli-
cable only to the different water districts created pursuant thereto. In all its essential
terms, it is obvious that it pertains to a special purpose which is intended to meet a
particular set of conditions and cirmcumstances. The fact that said decree generally
applies to all water districts throughout the country does not change the fact that
PD 198 is a special law. Accordingly, this Court's resolution in Metro Iloilo case de-
claring PD 198 as a general legislation is hereby abandoned.
By "government-owned or controlled corporation with original charter," We mean
government owned or controlled corporation created by a special law and not under
the Corporation Code of the Philippines. Thus, in the case of Lumanta v. NLRC (G.R.
No. 82819, February 8, 1989, 170 SCRA 79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National Labor Relations
Commission, G.R. No 69870, promulgated on 29 November 1988, quoting exten-
sively from the deliberations of 1986 Constitutional Commission in respect of the
intent and meaning of the new phrase "with original character," in effect held that
government-owned and controlled corporations with original charter refer to corpo-
rations chartered by special law as distinguished from corporations organized under
our general incorporation statute — the Corporations Code. In NASECO, the com-
pany involved had been organized under the general incorporation statute and was
a sbusidiary of the National Investment Development Corporation (NIDC) which in
turn was a subsidiary of the Philippine National Bank, a bank chartered by a special
statute. Thus, government-owned or controlled corporations like NASECO are effec-
tively, excluded from the scope of the Civil Service. (emphasis supplied)
From the foregoing pronouncement, it is clear that what has been excluded from
the coverage of the CSC are those corporations created pursuant to the Corporation
Code. Significantly, petitioners are not created under the said code, but on the con-
trary, they were created pursuant to a special law and are governed primarily by its
provision.
No consideration may thus be given to petitioners' contention that the operative act
which created the water districts are the resolutions of the respective local sanggu-
nians and that consequently, PD 198, as amended, cannot be considered as their
charter.
It is to be noted that PD 198, as amended is the source of authorization and power
to form and maintain a district. Section 6 of said decree provides:
Sec. 6. Formation of District. — This Act is the source of authorization and power to
form and maintain a district. Once formed, a district is subject to the provisions of
this Act and not under the jurisdiction of any political subdivision, . . . .
Moreover, it must be observed that PD 198, contains all the essential terms neces-
sary to constitute a charter creating a juridical person. For example, Section 6(a)
provides for the name that will be used by a water district, thus:
Sec. 6. . . . To form a district, the legislative body of any city, municipality or province
shall enact a resolution containing the following:
a) The name of the local water district, which shall include the name of the city,
municipality, or province, or region thereof, served by said system, followed by the
words "Water District."
It also prescribes for the numbers and qualifications of the members of the Board of
Directors:
Sec. 8. Number and Qualification. — The Board of Directors of a district shall be
composed of five citizens of the Philippines who are of voting age and residents
within the district. One member shall be a representative of civic-oriented service
clubs, one member of representative of professional associations, one member a
representative of business, commercial or financial organizations, one member a
representative of educational institutions and one member a representative of wom-
en's organization. No public official shall serve as director. Provided, however, that
if the district has availed of the financial assistance of the Administration, the Ad-
ministration may appoint any of its personnel to sit in the board of directors with all
the rights and privileges appertaining to a regular member for such period as the
indebtedness remains unpaid in which case the board shall be composed of six mem-
bers; (as amended by PDs Nos. 768 and 1479).
the manner of their appointment and nominations;
Sec. 9. Appointment. — Board members shall be appointed by the appointing au-
thority. Said appointments shall be made from a list of nominees, if any, submitted
pursuant to Section 10. If no nominations are submitted, the appointing authority
shall appoint any qualified person of the category to the vacant position;
Sec.10. Nominations. — On or before October 1 of each even numbered year, the
secretary of the district shall contact each known organization, association, or insti-
tution being represented by the director whose term will expire on December 31 and
solicit nominations from these organizations to fill the position for the ensuing term.
One nomination may be submitted in writing by each such organization to the Sec-
retary of the district on or before November 1 of such year: This list of nominees
shall be transmitted by the Secretary of the district to the office of the appointing
authority on or before November 15 of such year and he shall make his appointment
from the list submitted on or before December 15. In the event the appointing au-
thority fails to make his appointments on or before December 15, selection shall be
made from said list of nominees by majority vote of the seated directors of the
district constituting a quorum. Initial nominations for all five seats of the board shall
be solicited by the legislative body or bodies at the time of adoption of the resolution
forming the district. Thirty days thereafter, a list of nominees shall be submitted to
the provincial governor in the event the resolution forming the district is by a pro-
vincial board, or the mayor of the city or municipality in the event the resolution
forming the adoption of the district is by the city or municipal board of councilors,
who shall select the initial directors therefrom within 15 days after receipt of such
nominations;
their terms of office:
Sec. 11. Term of Office. — Of the five initial directors of each newly formed district,
two shall be appointed for a maximum term of two years, two for a maximum term
of four years, and one for a maximum term of six years. Terms of office of all direc-
tors in a given district shall be such that the term of at least one director, but not
more then two, shall expire on December 31 of each even-numbered year. Regular
terms of office after the initial terms shall be for six years commencing on January
1 of odd-numbered years. Directors may be removed for cause only, subject to re-
view and approval of the Administration; (as amended by PD 768).
the manner of filling up vacancies:
Sec. 12. Vacancies. — In the event of a vacancy in the board of directors occurring
more than six months before expiration of any director's term, the remaining direc-
tors shall within 30 days, serve notice to or request the secretary of the district for
nominations and within 30 days, thereafter a list of nominees shall be submitted to
the appointing authority for his appointment of a replacement director from the list
of nominees. In the absence of such nominations, the appointing authority shall
make such appointment. If within 30 days after submission to him of a list of nomi-
nees the appointing authority fails to make an appointment, the vacancy shall be
filled from such list by a majority vote of the remaining members of the Board of
Directors constituting a quorum. Vacancies occurring within the last six months of
an unexpired term shall also be filled by the Board in the above manner. The director
thus appointed shall serve the unexpired term only; (as amended by PD 768).
and the compensation and personal liability of the members of the Board of Direc-
tors:
Sec. 13. Compensation. — Each director shall receive a per diem, to be determined
by the board, for each meeting of the board actually attended by him, but no director
shag receive per diems in any given month in excess of the equivalent of the total
per diems of four meetings in any given month. No director shall receive other com-
pensation for services to the district.
Any per diem in excess of P50.00 shall be subject to approval of the Administration
(as amended by PD 768).
Sec. 14. Personal Liability. — No director may be held to be personally liable for any
action of the district.
Noteworthy, the above quoted provisions of PD 198, as amended, are similar to
those which are actually contained in other corporate charters. The conclusion is
inescapable that the said decree is in truth and in fact the charter of the different
water districts for it clearly defines the latter's primary purpose and its basic organ-
izational set-up. In other words, PD 198, as amended, is the very law which gives a
water district juridical personality. While it is true that a resolution of a local sanggu-
nian is still necessary for the final creation of a district, this Court is of the opinion
that said resolution cannot be considered as its charter, the same being intended
only to implement the provisions of said decree. In passing a resolution forming a
water district, the local sanggunian is entrusted with no authority or discretion to
grant a charter for the creation of a private corporation. It is merely given the au-
thority for the formation of a water district, on a local option basis, to be exercised
under and in pursuance of PD 198.
More than the aforequoted provisions, what is of important interest in the case at
bar is Section 3, par. (b) of the same decree which reads:
Sec. 3(b). Appointing authority. — The person empowered to appoint the members
of the Board of Directors of a local water district, depending upon the geographic
coverage and population make-up of the particular district. In the event that more
than seventy-five percent of the total active water service connections of a local
water districts are within the boundary of any city or municipality, the appointing
authority shall be the mayor of that city or municipality, as the case may be; other-
wise, the appointing authority shall be the governor of the province within which the
district is located: Provided, That if the existing waterworks system in the city or
municipality established as a water district under this Decree is operated and man-
aged by the province, initial appointment shall be extended by the governor of the
province. Subsequent appointments shall be as specified herein.
If portions of more than one province are included within the boundary of the dis-
trict, and the appointing authority is to be the governors then the power to appoint
shall rotate between the governors involved with the initial appointments made by
the governor in whose province the greatest number of service connections exists
(as amended by PD 768).
The above-quoted section definitely sets to naught petitioners' contention that they
are private corporations. It is clear therefrom that the power to appoint the members
who will comprise the Board of Directors belongs to the local executives of the local
subdivision units where such districts are located. In contrast, the members of the
Board of Directors or trustees of a private corporation are elected from among the
members and stockholders thereof. It would not be amiss to emphasize at this point
that a private corporation is created for the private purpose, benefit, aim and end of
its members or stockholders. Necessarily, said members or stockholders should be
given a free hand to choose those who will compose the governing body of their
corporation. But this is not the case here and this clearly indicates that petitioners
are definitely not private corporations.
The foregoing disquisition notwithstanding, We are, however, not unaware of the
serious repercussion this may bring to the thousands of water districts' employees
throughout the country who stand to be affected because they do not have the
necessary civil service eligibilities. As these employees are equally protected by the
constitutional guarantee to security of tenure, We find it necessary to rule for the
protection of such right which cannot be impaired by a subsequent ruling of this
Court. Thus, those employees who have already acquired their permanent employ-
ment status at the time of the promulgation of this decision cannot be removed by
the mere reason that they lack the necessary civil service eligibilities.
ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared "govern-
ment-owned or controlled corporations with original charter" which fall under the
jurisdiction of the public respondents CSC and COA.
SO ORDERED.
 district of Pangasinan in the congressional elections of November 12, 1957. On Au-
gust 23, 1957, the parties entered into a written agreement bearing the same date,
containing among other matters stated therein, a pledge that —
Each aspirant shall respect the result of the aforesaid convention, i.e., no one of us
shall either run as a rebel or independent candidate after losing in said convention.
In the provincial convention held by the Nacionalista Party on August 31, 1957, Saura
was elected and proclaimed the Party's official congressional candidate for the afore-
said district of Pangasinan. Nonetheless, Sindico, in disregard of the covenant, filed,
on September 6, 1957, her certificate of candidacy for the same office with the
Commission on Elections, and she openly and actively campaigned for her election.
Wherefore, on October 5, 1957, plaintiff Saura commenced this suit for the recovery
of damages. Upon motion of the defendant, the lower court, in its order of November
19, 1957, dismissed the complaint on the basis that the agreement sued upon is null
and void, in tat (1) the subject matter of the contract, being a public office, is not
within the commerce of man; and (2) the "pledge" was in curtailment of the free
exercise of elective franchise and therefore against public policy. Hence, this appeal.
We agree with the lower court in adjudging the contract or agreement in question a
nullity. Among those that may not be the subject matter (object) of contracts are
certain rights of individuals, which the law and public policy have deemed wise to
EN BANC exclude from the commerce of man. Among them are the political rights conferred
G.R. No. L-13403 March 23, 1960 upon citizens, including, but not limited to, once's right to vote, the right to present
RAMON E. SAURA, plaintiff-appellant, one's candidacy to the people and to be voted to public office, provided, however,
vs. that all the qualifications prescribed by law obtain. Such rights may not, therefore,
ESTELA P. SINDICO, defendant-appellee. be bargained away curtailed with impunity, for they are conferred not for individual
Anacleto Magno for appellant. or private benefit or advantage but for the public good and interest.
Espeque and Jalandoni for appellee. Constitutional and statutory provision fix the qualifications of persons who may be
REYES, J. B. L., J.: eligible for certain elective public offices. Said requirements may neither be enlarged
Appeal on issues of law from an order of the Court of First Instance of Pangasinan nor reduced by mere agreements between private parties. A voter possessing all the
dismissing plaintiff's complaint for damages. qualifications required to fill an office may, by himself or through a political party or
From the records it appears that Ramon E. Saura and Estela P. Sindico were con- group, present his candidacy without further limitations than those provided by law.
testing for nomination as the official candidate of the Nacionalista Party in the fourth Every voter has a right to be a candidate for public office if he possesses the quali-
fications required to fill the office. It does not necessarily follow that he can be the
candidate of a particular political party. The statute provides when and how one may We find it unnecessary to discuss the other points raised by the parties.
be a candidate of a political party. If he cannot fill the requirement so as to be the Wherefore, the order of dismissal appealed from is hereby affirmed. No pronounce-
candidates of the political party of his choice, he may still be a candidate at the ment as to costs.
general election by petition. The right of the voter to vote at the general election for
whom he pleases cannot be limited. (Roberts vs. Cleveland, Secretary of State of
State of New Mexico, 48 NM 226, 149 P (2d) 120, 153 A.L.R. 635, 637-638) (Em-
phasis supplied)
In common law, certain agreements in consideration of the withdrawal of candidates
for office have invariably been condemned by the courts as being against public
policy, be it a withdrawal from the race for nomination or, after nomination, from
the race for election. (See notes in 37 L. R. A. (N.S.) 289 and cases cited therein;
18 Am. Jur. Sec. 352, pp. 399-400)
In the case at hand, plaintiff complains on account of defendant's alleged violation
of the "pledge" in question by filing her own certificate o candidacy for a seat in the
Congress of the Philippines and in openly and actively campaigning for her election.
In the face of the preceding considerations, we certainly cannot entertain plaintiff's
action, which would result in limiting the choice of the electors to only those persons
selected by a small group or by party boses.
The case of Pendleton vs. Pace, 9 S.W. (2nd) 437, cited by the appellant, is clearly
inapplicable. The court there only sanctioned the validity of an agreement by the
opposing candidates for nomination setting aside and re-submitting the nomination
for another primary election on account of the protest or contest filed by the losing
candidate in the first primary election. To abandon the contest proceedings, the
candidates for nomination agreed to submit again their nomination to the electors
in the subsequent primary.
Appellant likewise cites and quotes a portion of our ruling in Monsale vs. Nico, 83
Phil., 758; 46 Off. Gaz., 210, to the effect that it is not incompetent or a candidate
to withdraw or annul his certificate of candidacy. This is not in point, for while we
stated there that he may do so, there being no legal prohibition against such a
voluntary withdrawal, it does not follow, nor did we imply anywhere in the decision,
that in case there is any agreement or consideration for such a withdrawal, said
agreement or consideration should be held valid or given effect.
 tion per annum of P3,493, vice Juan Mendoza, Jr., resigned. This appointment, ef-
fective September 1, 1960, was approved by the Commissioner of Civil Service on
May 14, 1962, and released to the Department of Labor on May 25, 1962.
In June of 1962, respondent Secretary of Labor appointed Ricardo Tiongco,
one of the respondents, to the same position of Labor Conciliator II. 1
Petitioner's demand for the revocation of respondent Tionco's appointment
and payment to him (Santos) of salary differentials was rejected by respondent Sec-
retary of Labor.
From the foregoing events stemmed the present petition for mandamus filed
on August 20, 1962 three days before Santos actually retired from the service which
was an August 23, 1962. 2 The petition prays, inter alia, that respondents be com-
manded to nullify the appointment of Tiongco, and to uphold as legal and existing
petitioner's appointment, as Labor Conciliator II, from September 1, 1960; and that
the salary differentials aforesaid be paid petitioner. Respondents seasonably an-
swered the petition.
Before the case could be tried on the merits that is, on February 14, 1963,
Santos died. A motion to substitute the "Estate of Segundo Santos, deceased." rep-
resented by Rodolfo Santos, one of the heirs, was filed. This triggered a move on
EN BANC respondents' part to seek dismissal of the case.
G.R. No. L-21624 February 27, 1968 The court, on April 10, 1963, dismissed the petition without costs. Hence,
SEGUNDO SANTOS, petitioner, this appeal on purely questions of law.
vs. 1. The threshold question is this: May the Estate of Segundo Santos, de-
SECRETARY OF LABOR, RAOUL M. INOCENTES, Commissioner of Civil Ser- ceased, be substituted in place of petitioner herein?
vice, RICARDO TIONGCO and CASHIER, Regional Office No. 4, respondents. Public office is a public trust. 3 It is personal to the incumbent thereof or
Castro M. Baltazar for petitioner. appointee thereto. In this sense, it is not property which passes to his heirs. None
Office of the Solicitor General for respondents. of the heirs may replace him in that position. It is in this context that we say that
SANCHEZ, J.: the Estate of the deceased Segundo Santos may not press Santos' claim that he be
Segundo Santos was, for a number of years, employed as Labor Conciliator I allowed to continue holding office as Labor Conciliator II. Actio personalis moritur
(Regional Office No. 4) of the Department of Labor. His monthly pay was P259 per cum persona.
month, or P3,108 per annum. On August 24, 1960, he was extended an appointment But jurisdiction of the court had attached before the death of Santos. That
(promotion) as Labor Conciliator II (Regional Office No. 3, Manila) with compensa- jurisdiction continues until the termination of the suit. It is true that what is left is a
money claim for salary differentials. But death will not dislodge jurisdiction on that
money claim — it subsists. Resolution of this question depends upon the right of
Segundo Santos to the position of Labor Conciliator II.
We rule that the Estate of the deceased Segundo Santos may be substituted
for him in the present proceedings. We do so now.1äwphï1.ñët
2. We go to the merits.
Stripped of unnecessary details, the facts are: On August 24, 1960, petitioner,
a second grade eligible, was appointed Labor Conciliator II at an annual compensa-
tion of P3,493 effective September 1, 1960. As far as salary is concerned, no law,
rule or regulation has been violated. Because, an annual pay of P3,493 is well within
the range provided for second grade civil service eligibles. 4 this Court, and back to the lower court and perhaps only to be appealed once again
Respondents challenge the legality of petitioner's appointment as Labor Con-
ciliator II. They say that such appointment is within the prohibition set forth in the
memorandum circular of the Civil Service Commission dated February 16, 1961,
thus: "Employees should not be assigned or promoted to positions the initial rate of
the salary allocation of which exceed the maximum allowable for their eligibility."
Respondents likewise aver that it was because of this circular, that the appointment
of petitioner as Labor Conciliator II was recalled on September 7, 1961. The circular
was not violated.
And the withdrawal of petitioner's appointment is not a proven fact. What the
record clearly discloses is that the original appointment of petitioner as Labor Con-
ciliator II was not taken out of the Civil Service Commission; it was approved by the
Commissioner of Civil Service on May 14, 1962 and released to the Secretary of
Labor on May 25, 1962.
More important now is that the defense of recall has been abandoned by
respondents. The case was ready for trial below. They did not go to trial. Instead,
they thought it advantageous to them — upon petitioner's death — to submit their
case on their motion to dismissed solely on legal grounds, namely, that the death of
petitioner extinguished the controversy, and that the remaining claim for damages
is ancillary to mandamus and is also abated by death.
The money claim here involved, however, descended to Santos' heirs. And,
as we have earlier in this opinion stated, his Estate may prosecute that claim to its
conclusion.
It will not be in harmony with our sense of justice to return this case to the
court below — at this stage — just to allow respondents to prove their defense of
recall of petitioner's appointment.
Respondents had a choice: To go to trial on the merits upon the issues raised
in their answer; or, seek to overthrow petitioner's case on legal issues. They did
elect the latter. They cannot be permitted once again to return to the lower court
for a trial on the merits. 5 Suitors should not normally be allowed to gamble with
court proceedings in the hope of obtaining beneficial results. It is unfair that this
case should, on respondents' choice, be made to bounce from the lower court to
to an appellate court. The ensuing delay, increased cost of litigation, and trouble
and anxiety and harassment to be caused to the adverse party, the wastage of the
courts' time — these are reasons potent enough to support this view.
At all events, petitioner's right to salary differentials and the duty to pay him
are both clear. Civil Service approval completed petitioner's appointment, 6 clinched
the case for him.
3. The rest is a question of mathematical computation. Petitioner's pay as
Labor Conciliator I was at the rate of P259 per month or P3,108 per annum. His
increased compensation as Labor Conciliator II from September 1, 1960, to August
23, 1962, the date of his retirement, is at the late of P3,493 per annum, specified in
his promotional appointment, and reiterated in the 5th indorsement of the Commis-
sioner of Civil Service to the Secretary of Labor dated May 22, 1962. He is entitled
only to the pay set forth in his appointment, and no more — absent a legal adjust-
ment thereof. There is no such adjustment here. Petitioner's salary differentials dur-
ing the period covered amounts to P761.68. And this should be paid to his Estate.
Upon the view we take of this case, we vote to reverse the order of the Court
of First Instance of Manila dated April 10, 1963, and to direct the Secretary of Labor
and the corresponding Cashier to pay the Estate of the deceased petitioner Segundo
Santos the sum of P761.68.
No costs. So ordered.

SECOND DIVISION
G.R. No. L-30057 January 31, 1984
BRUNO O. APARRI, petitioner,
vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution
for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL
B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the
Board of Directors of the defunct National Resettlement and Rehabilita-
tion Administration (NARRA), respondents.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.
MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then Court of Appeals
(now Intermediate Appellate Court under BP 129) dated September 24, 1968, af-
firming the decision of the then Court of First Instance (now Regional Trial Court),
the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of
the present petition for mandamus is hereby affirmed, without pronouncement as
to costs (p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board of Directors of
the defunct National Resettlement and Rehabilitation Administration created under
Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following
resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Man-
ager of the National Resettlement and Rehabilitation Administration (NARRA) with
all the rights, prerogatives and compensation appurtenant thereto to take effect on
January 16, 1960);
RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philip-
pines of the above appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chair-
man of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the
following letter:
Manila, January 22, 1960
Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in the National Resettlement and
Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE
THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January
16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the general manager
is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June
18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall
have the following powers and duties: ...
2) To appoint and fix the term of office of General Manager ..., subject to the rec-
ommendation of the Office of Economic Coordination and the approval of the Presi-
dent of the Philippines, .... The Board, by a majority vote of all members, may, for
cause, upon recommendation of the Office of Economic Coordination and with the
approval of the President of the Philippines, suspend and/or remove the General
Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the following resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the
desire of the Office of the President Malacanang, Manila, to fix the term of office of
the incumbent General Manager up to the close of office hours on March 31, 1962,
in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of
Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General
Manager of the National Resettlement and Rehabilitation Administration (NARRA) to
March 31, 1962 (pp. 6-7, rec., emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction with the then
Court of First Instance of Manila on March 29, 1962. The petition prayed to annul
the resolution of the NARRA Board dated March 15, 1962, to command the Board to
allow petitioner to continue in office as General Manager until he vacates said office
in accordance with law and to sentence the private respondents jointly and severally
to pay the petitioner actual damages in the sum of P95,000.00, plus costs.
On August 8, 1963, when the case was still pending decision in the lower court,
Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took
effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its
functions and powers to the Land Authority. On October 21, 1963, the then Court of
First Instance of Manila rendered judgment, finding "that this case has become ac-
ademic by reason of the approval of the Agricultural Land Reform Code (Republic
Act No. 3844) and thereby dismissing the instant petition without pronouncement
as to costs" (p. 5, rec.).
On appeal to the then Court of Appeals, the appellate tribunal speaking through then
Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing
the petition for mandamus. Pertinent provisions of the decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the
position of General Manager without fixed term and his appointment is, in essence,
terminable at the pleasure of the appointing power which, in this case, is the Board
of Directors. Where, as in the case at bar, the appointing officer, that is, the Board
of Directors, had fixed the term of office of the incumbent Manager to end on March
31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the
term of his office which is one of the recognized modes of terminating official rela-
tions. Considering that the term of office of the General Manager of the NARRA is
not fixed by law nor has it been fixed by the Board of Directors at the time of his
appointment although it had the power to do so, it is obvious that the term of office
of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold
the said office was thereby extinguished. In other words, Bruno O. Aparri cessation
from office invokes no removal but merely the expiration of the term of office which
was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri con-
tinues only for so long as the term of his office has not ended (Alba vs. Hon. Jose
N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec.,
emphasis supplied].
The motion for reconsideration by petitioner in the then Court of Appeals was denied
on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to review the deci-
sion of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The
same was initially denied for lack of merit in a resolution dated January 27, 1969 (p.
55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition
was given due course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board Resolution No.
24 (series of 1962) was a removal or dismissal of petitioner without cause.
WE affirm. WE hold that the term of office of the petitioner expired on March 31,
1962.
A public office is the right, authority, and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign func-
tions 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 po-
litical system is therefore not a natural right. It exists, when it exists at all only
because and by virtue of some law expressly or impliedly creating and conferring it
(Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in
an office, or even an absolute right to hold office. Excepting constitutional offices
which provide for special immunity as regards salary and tenure, no one can be said
to have any vested right in an office or its salary (42 Am. Jur. 881).
The National Resettlement and Rehabilitation Administration (NARRA) was created
under Republic Act No. 1160 (approved June 18,1954), which provides that:
Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ...
there is hereby created a corporation to be known as National Resettlement and
Rehabilitation Administration hereafter referred to as "NARRA" to perform under the
supervision and control of the President of the Philippines, through the Office of
Economic Coordinator all the duties and functions of the Bureau of Lands as provided
for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and
such other duties as are hereinafter specified in this Act. It shall be headed by a
General Manager and an Assistant Manager who shall be appointed as hereinafter
provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors
of the NARRA the power "to appoint and fix the term of office of the general manager
... subject to the recommendation of Economic Coordination and the approval of the
President of the Philippines" (emphasis supplied).
By "appointment" is meant the act of designation by the executive officer, board or
body, to whom that power has been delegated, of the individual who is to exercise
the functions of a given office (Mechem op. cit., Sec. 102). When the power of
appointment is absolute, and the appointee has been determined upon, no further
consent or approval is necessary, and the formal evidence of the appointment, the
commission, may issue at once. Where, however, the assent or confirmationof some
other officer or body is required, the Commission can issue or the appointment is
complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal.
407). To constitute an "appointment" to office, there must be some open, unequiv-
ocal act of appointment on the part of the appointing authority empowered to make
it, and it may be said that an appointment to office is made and is complete when
the last act required of the appointing authority has been performed (Molnar vs. City
of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment
becomes complete when the last act required of the appointing power is performed
(State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to Resolution No. 13
(series of 1960 — approved on January 15, 1960) of the Board of Directors. A careful
perusal of the resolution points out the fact that the appointment is by itself incom-
plete because of the lack of approval of the President of the Philippines to such
appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the
Philippines of the above appointment of Mr. Aparri (p. 2, rec.).
Presumably, the Board of Directors of the NARRA expected that such appointment
be given approval by the then President. Lacking such approval by the President as
required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was
not complete. The petitioner can, at best, be classified as a de facto officer because
he assumed office "under color of a known appointment or election, void because
the officer was not eligible or because there was a want of power in the electing
body, or by reasons of some defect or irregularity in its exercise, such ineligibility,
want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn.
449, 9Am. Rep. 409).
However, such appointment was made complete upon approval of Resolution No.
24 (series of 1962-approved March 15, 1962) wherein the President submitted to
the Board his "desire" to fix the term of office of the petitioner up to the close of
office hours on March 31, 1962. The questioned resolution corrected whatever req-
uisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution
No. 24, approved by the respondent Board and pursuant to "the desire of the Pres-
ident" legally fixed the term of office of petitioner as mandated by paragraph 2,
Section 8 of Republic Act 1160.
The word "term" in a legal sense means a fixed and definite period of time which
the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa
City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to
Mochem, the term of office is the period during which an office may be held. Upon
the expiration of the officer's term, unless he is authorized by law to hold over, his
rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op.
cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent
method by which a public officer ceases to be such is by the expiration of the term
for which he was elected or appointed. The question of when this event has occurred
depends upon a number of considerations, the most prominent of which, perhaps,
are whether he was originally elected or appointed for a definite term or for a term
dependent upon some act or event ... (Mechem op. cit., Sec. 384).
It is necessary in each case to interpret the word "term" with the purview of statutes
so as to effectuate the statutory scheme pertaining to the office under examination
(Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar,
the term of office is not fixed by law. However, the power to fix the term is vested
in the Board of Directors subject to the recommendation of the Office of Economic
Coordination and the approval of the President of the Philippines. Resolution No. 24
(series of 1962) speaks of no removal but an expiration of the term of office of the
petitioner. The statute is undeniably clear. It is the rule in statutory construction that
if the words and phrase of a statute are not obscure or ambiguous, its meaning and
the intention of the legislature must be determined from the language employed,
and, where there is no ambiguity in the words, there is no room for construction
(Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the
probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am.
St., Rep. 744). The reason for the rule is that the legislature must be presumed to
know the meaning of words, to have used words advisedly and to have expressed
its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of his term (Ma-
nalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed
before the expiration of his term. Rather, his right to hold the office ceased by the
expiration on March 31, 1962 of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT
COSTS.
SO ORDERED
 still pending in the commission, he filed on October 21, 1988 in the Regional Trial
Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela
against Mesina (docketed as Election Protest No. B-44) with claims for damages,
attorney's fees, and costs. Mesina filed an Answer with counterclaims for damages
EN BANC and attorney's fees.
G.R. Nos. 95275-76 July 23, 1991 On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor,
SIXTO DE LA VICTORIA, petitioner, Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Me-
vs. sina's heirs (the private respondents herein), nor her counsel informed the trial court
COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA repre- about her death.
sented by FAUSTINO MESINA, JR., JUAN ALAO and VICTOR S. MESINA, On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-
respondents. proclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC
Constante P. Pimentel, et al. for petitioner. granted his motion.
Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional
Heirs of Genoveva S. Mesina. Trial Court (RTC) a verified "Petition to Intervene" in the election protest of De la
Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina. Victoria.
On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for
GRIÑO-AQUINO, J.: damages and costs against the deceased protestee, Mesina. The trial court granted
This petition for certiorari with preliminary injunction and/or restraining order assails the motion (p. 389, Rollo).
the order of the Commission on Elections En Banc (COMELEC, for short) which al- On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substi-
lowed the substitution of the heirs of a deceased candidate as protestee in the elec- tution of the deceased protestee by her heirs, and requested that his motion be set
tion protest filed by her rival for the office of municipal mayor of Albuera, Leyte, in for hearing on July 2, 1990.
the local elections on February 1, 1988, and allowed the same heirs to appeal the De la Victoria opposed the motion for substitution on the ground that the heirs of
decision of the Regional Trial Court declaring her rival (the protestant and herein Mesina are not the "real party in interest" and that since he (De la Victoria) had
petitioner), as the actual winner in that election. waived his claim for damages against the deceased, her heirs have no more right to
The contenders for the mayorship of Albuera, Leyte in the special local elections held intervene in the case or have been "erased from the picture altogether" (Lomugdang
on February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes, vs. Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533).
the late Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who gar- On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs
nered 982 votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed of Mesina and ruled that De la Victoria's waiver of his claim for damages against the
Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and pro- said protestee rendered the Motion for Substitution without basis in law, or moot
claimed vice-mayor was her running-mate, Aquilino Cantiga, Jr. and academic.
In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclama-
tion cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were
On July 17, 1990, the trial court promulgated a decision in the Election Protest No.
B-44, declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera,
Leyte, by a margin of 134 votes over the deceased protestee, Genoveva S. Mesina.
Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by
a petition for certiorari and prohibition with preliminary injunction to restrain the trial
court from rendering a decision in Election Protest No. B-44 or conducting further
proceedings therein.
On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De
la Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that
the heirs had no standing in the case as they failed to appeal the July 2, 1990 Order
of the trial court denying their motion for substitution. The trial court in its Order of
July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record
of the case. It held that the intervenor, Vice-Mayor Cantiga, who succeeded the
deceased protestee by operation of law, not the "heirs" of the deceased, is the "real
party in interest" in the continuation of the election protest after the demise of the
protestee. Moreover, upon the waiver by De la Victoria of his claim for damages
against Mesina, the latter's heirs had no more legal interest to defend in her behalf.
On July 24, 1990, De la Victoria filed a motion for execution of the trial court's deci-
sion. It was granted by the court on July 25, 1990. Promptly, on the same day, De
la Victoria was sworn into office as the duly elected Mayor of Albuera.
As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by
a petition for certiorari and prohibition with a prayer for the issuance of a writ of
preliminary injunction (SPR No. 9-90). In his Comment on the petition, De la Victoria
adverted to the decision dated July 17, 1990 of the trial court which became final
and executory when no appeal was taken therefrom.
On the same date, the COMELEC denied the heirs' application for a temporary re-
straining order (TRO), but set the case for hearing before the COMELEC En Banc for
"preliminary determination of the sufficiency of the allegations in the main issue
raised by said respondents-heirs."
De la Victoria opposed the petition.
On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and
mandamus (SPR No. 11-90), praying that the execution of the decision of the trial
court in Election Protest No. B-44 be stopped.
On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte.
On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria
to answer the petition in SPR No. 11-90, and setting the petition for preliminary
injunction for hearing on August 23, 1990.
On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2,
1990 denying the motion for substitution of the heirs of the deceased protestee, and
the Order dated July 23, 1990 which denied due course to the Notice of Appeal of
the heirs from its decision dated July 17, 1990. It declared the writ of execution null
and void and ordered the elevation to it of the records of the case pursuant to Rule
22 of the COMELEC Rules of Procedure (on appeal from election protest decided by
trial courts of general jurisdiction).
De la Victoria has come to us for relief through this petition for certiorari with prayer
for the issuance of a temporary restraining order (TRO) where the main issues raised
are: (1) whether the heirs of the deceased protestee in an election protest may be
considered as real party-in-interest even if the vice-mayor has been allowed to in-
tervene and the protestant had waived his claim for damages and costs in the pro-
ceedings; and (2) whether said heirs may appeal the decision in the election protest
(EPC No. B-44).
After careful deliberation, the Court is persuaded that the answer to both questions
is no.
The late Genoveva Mesina's claim to the contested office was not in any sense a
transmissible right that devolved upon her surviving spouse and her children (herein
private respondents) after her death. "Public office is personal to the incumbent and
is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA
848). Private respondents' only interest in the outcome of the case is limited to no
more than their interest in defending her against the protestant's claim for damages
and costs (which the protestant, herein petitioner, has already waived). They may
no longer prosecute her own counter-claim for damages against the protestant for
that was extinguished when death terminated her light to occupy the contested of-
fice of mayor of Albuera, Leyte.
In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled:
The same cannot, however, be said of the protestee's widow or of the local Liberal
Party chapter of Muntinlupa. The protestee's claim to the contested office is not in
any sense a right transmitted to his widow or heirs. Said widow's remaining interest
in the outcome of the case is limited to no more than the possible award of costs
against the deceased protestee. Besides not being such an interest as would justify
her substitution for her deceased husband as an indispensable legal representative,
the right to such an award if eventually made has already been waived by protestant
Argana. This effectively withdraws the widow from the picture altogether. Much less
has the local Liberal Party Chapter any claim to substitution. Not being duly incor-
porated as a juridical person, it can have no personality to sue or be sued as such.
And while it conceivably may derive some indirect benefit consequent to the resolu-
tion of the contest in favor of the deceased protestee, neither the chapter itself nor
the officers thereof would become entitled thereby to any right to the contested
office in case of a favorable judgment, nor, for that matter, do they stand to sustain
any direct prejudice in case of an adverse one. No basis therefore exist upon which
to predicate their claim to substitution. (Emphasis supplied).
This ruling was not a mere obiter as the COMELEC erroneously supposed.
Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Mu-
nicipal Mayor upon the death of Mesina on July 22, 1989, automatically made him
the real party-in-interest in the election contest for his right to hold the office of
municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest.
Thus did this Court hold in Lomugdang vs. Javier, 21 SCRA 403:
The vice-mayor elect has the status of a real party-in-interest in the continuation of
the proceedings and is entitled to intervene therein. For if the protest succeeds and
the protestee is unseated, the vice-mayor succeeds to the office of mayor that be-
comes vacant if the one duly elected cannot assume the post.
This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990):
Now under the Local Government Code, the vice-mayor stands next in line of suc-
cession to the mayor in case of a permanent vacancy in the latter's position. Upon
the death of the protestee mayor in the case at bar, petitioner, as then incumbent
vice-mayor, succeeded by operation of law to the vacated office and is ordinarily
entitled to occupy the same for the unexpired term thereof. The outcome of the
election contest necessarily and primarily bears upon his right to his present position
and he is the person directly concerned in the fair and regular conduct of the election
in order that the true will of the electorate will be upheld. His status as a real party-
in-interest in the continuation of said case cannot thus be disputed. (Emphasis sup-
plied.)
On the procedural aspects of the case, we find the following observations of the
Solicitor General in his Consolidated Comment dated January 8, 1991, to be well
taken:
. . . respondent COMELEC acted with grave abuse of discretion in giving due course
to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90
filed on August 6, 1990 to set aside the final and executory decision of the trial court
promulgated on July 18, 1990, far beyond the 5-day period allowed by [Section 22,
Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.)
Respondent COMELEC further gravely abused its discretion by issuing a "permanent"
and final injunction to prevent the execution of said final and executory Decision
dated July 17, 1990 of the trial court, without the required bond contrary to its own
Rule 30, Section 4, COMELEC Rules of Procedure. (p. 411, Rollo.)
However, these issues have been rendered moot and academic by the COMELEC's
order of January 23, 1991 dismissing the "reinstated" appeal of the private respond-
ents (p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990,
the last day for filing the same, their Motion for Extension of Time to File said Ap-
pellant's Brief having been previously denied by the COMELEC for being a prohibited
pleading under Section 1(c) of Rule 13 of the COMELEC Rules of Procedure, in rela-
tion to Section 9(b) Rule 22 of the COMELEC Rules of Procedure, The COMELEC's
dismissal order reads: Consequently, the dismissal of the herein appeal case pursu-
ant to the Comelec Rules of Procedure renders the decision of the Regional Trial
Court of Leyte, Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp.
459-460, Rollo.) On January 28, 1991, petitioner De la Victoria reassumed the office
of Mayor of Albuera, Leyte (p. 460, Rollo).
WHEREFORE, finding merit in the petition for certiorari, the same is hereby
GRANTED, with costs against private respondents.1âwphi1 The proclamation of
Sixto de la Victoria as mayor of Albuera, Leyte, is upheld
THIRD DIVISION
G.R. No. 115788 September 17, 1998
SPS. SONYA & ISMAEL MATHAY, JR., petitioners,
vs.
HON. COURT OF APPEALS, SPS. TEODULFO & SYLVIA ATANGAN, SPS.
AGUSTINA & AMOR POBLETE, SPS. EDUARDO & FELICISIMA TIRONA, re-
spondents.
PURISIMA, J.:
At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, seeking to set aside the Decision 1 of the Court of Appeal 2 dated November
18, 1993 in CA-G.R. CV No. 37902, reversing the Decision 3 dated March 30, 1992
in Civil Case Nos. TM-175, 180 and 206 of Branch 23, Regional Trial Court of Trece
4 it was based on an alleged TCT No. T-3444 in favor of Pedro Banayo and Pablo
Martines City, Province of Cavite.
The antecedent facts which gave rise to private respondents' complaints are sum-
marized in the Decision of the lower court, as follows:
Civil Case No. TM-175 entitled "Spouses Teodulfo T. Atangan and Silva [sic] L. Atan-
gan vs. Spouses Sonya Mathay and Ismael Mathay, Jr., and the Register of Deeds
of Cavite," involves (2) [sic] parcels of land situated in Tanza, Cavite, covered by
Transfer Certificate of Title Nos. T-195350 covering Lot No. 2186-A, issued by the
Office of the Register of Deeds of Cavite in the name of Spouses Teodulfo T. Atangan
and Silvia [sic] L. Atangan, and TCT No. T-195351, covering Lot No. 2186-C, issued
in the name of Silvia [sic] L. Atangan and Teodulfo T. Atangan, on July 24 1985.
PLAINTIFFS allege that:
1) they are the registered owners of two (2) parcels of land situated in Tanza, Cavite
having purchased the same from Spouses Tomas Lucido and Eustaquia Villanueva
as evidenced by a Deed of Sale; 2) they were issued TCT Nos. T-195350 and T-
195351; 3) the vendors, spouses Tomas Lucido and Eustaquia Villanueva were also
issued TCT Nos. T-192527 and T-192529 by the Register of Deeds of Cavite, which
were cancelled in favor of the plaintiffs; 4) vendors' titles which were transferred to
plaintiffs were obtained by virtue of the decisions in Civil Case No. NC-709 entitled
Tomas Lucido vs. Juana Onate Batallones and Petronilla C. Quimio, Director of
Lands, and Registers (sic) of Deeds of Cavite; 5) the heirs of Onofre Batallones and
Norberto Quimio are the vendees of the said lands from the Bureau of Lands as
evidenced by a Certification issued by Adelwisa P. Onga, (sic) Record Officer of the
District Land Office of Trece Martires City; 6) the sale of the said parcels of land from
the Bureau of Lands in favor of the heirs of Batallones and Quimio was also evi-
denced by a Deed of Conveyance duly issued by Bureau of Lands; 7) from the time
they obtained titles of the two parcels of land [they] have taken possession and paid
the corresponding realty property taxes; 8) defendants have enclosed a portion of
said property with a fence and occupied 23,800 square meters without the consent
and will of plaintiffs; 9) plaintiffs have learned that defendants as vendees have also
issued title covering the same land in the name of the plaintiffs under TCT No. T-
113047; 10) the titles issued to defendants was (sic) the product of forgery because
Pugay of Trece Martires City who have no right whatsoever on the real estate in
question; 11) upon investigation, it was certified by the Bureau of Lands that the
said titles were falsified and forged because alleged Deed No. V-12918 was issued
to one Jack C. Callado for Lot 18, Block 56, Tala Estate situated in Caloocan City and
there was no record in the Bureau of Lands that Deed No. V-12918 was issued for
Lot 2886, S.C. Malabon Estate, Cavite in favor of Pedro Banayo and Pablo Pugay
from whom defendants have allegedly acquired title over the said property; 12) con-
sidering that the title of the defendants have no basis in law and fact and that the
same was illegally, unlawfully and maliciously issued by the Register of Deeds on
the basis of forged and falsified and none [sic] existing documents as basis for the
issuance thereof, the same may be cancelled and defendants have no right to take
possession of the real properties thereon including the portion pertaining to the
herein plaintiffs consisting of 23,800 square meters, more or less; 13) in view of bad
faith, illegal and unlawful actuations of the defendants in obtaining titles over the
property in question thru forged and falsified documents, plaintiffs suffered sleepless
nights, anxiety, mental anguish for which they are entitled to claim for moral dam-
ages in the sum of P100,000.00; 14) despite repeated demands from the plaintiffs
for the defendants (sic) to desist from enclosing the titled property with a fence, the
latter without any lawful right insisted and actually closed their property with a fence,
causing irreparable damage and prejudice to the plaintiffs; 15) in view of the illegal,
unlawful, malicious and bad faith of the defendants and in disregard of the rights of
the plaintiffs, the latter are constrained to hire the services of counsel for which they
agreed to pay the sum of P50,000.00 in addition to the appearance fee of P500.00
every hearing of his case.
xxx xxx xxx
Involved in Civil Case No. TM-180 entitled Sps. Agustina Poblete and Amor Poblete
vs. Sps. Sonya Mathay and Ismael Mathay, Jr., and the Register of Deeds of Cavite
for Annulment of Titles and Recovery of Possession, is a parcel of land situated in
Tanza, Cavite, covered by Transfer Certificate of Title Nos. T-192532 registered in
the name of Juana Batallones and Gaudencio Quimio which was allegedly sold to the
herein plaintiff, as per "Deed of Conditional Sale" dated December 28, 1987.
PLAINTIFFS allege that:
1) Plaintiffs are the registered owners of a parcel of land situated in Tanza, Cavite
having purchased the same from Juana Batallones and Gaudencio Quimio for them-
selves and on behalf of their co-heirs as evidenced by Deed of Sale;
2) Plaintiffs-predecessors-in-interest were duly issued Certificate of Title No. T-
192532;
3) said vendees whose titles aforesaid was transferred in favor of the plaintiffs have
obtained the title by virtue of the decision by then Court of First Instance of Naic,
Cavite in Civil Case No. NC-709 entitled Tomas Lucido vs. Juana Onate Batallones
and Petronilla Q. Quimio, Director of Lands, the Register of Deeds of Cavite;
4) the heirs of Onofre Batallones and Modesta Quimio are the vendees of the land
from the Bureau of Lands as evidenced by a Certification issued by Adelwisa P. Ong,
Record Officer of the District Land Office of Trece Martires City;
5) the sale of the said parcel of land from the Bureau of Lands in favor of the heirs
of Batallones and Quimio was also evidenced by a Deed of Conveyance duly issued
by the Bureau of Lands;
6) plaintiffs have taken possession thereof;
7) defendants have enclosed a portion of said property with a fence and occupied
114,987 square meters thereof without the consent and against the will of plaintiffs;
8) plaintiffs have learned that defendants as vendees have been also issued Transfer
Certificate of Title covering the same land titled in the name of the plaintiffs under
TCT No. T-112047;
9) the title issued to defendants was the product of forgery because it was based on
an alleged TCT No. T-111070 in favor of Pedro Banayo and Pablo Pugay of Trece
Martires City who have no right whatsoever on the real estate in question;
10) upon investigation it was certified by the Bureau of Lands that the said title was
falsified and forged because alleged Deed No. V-12918 was issued to one Juana C.
Collado for Lot No. 18, Block 56, Tala Estate situated in Caloocan City and that there
was (sic) no records in the Bureau of Lands that Deed No. 12918 was issued Lot
2886, S.C. Malabon Estate, Cavite in favor of Pedro Banayo and Pablo Pugay to
whom defendants have allegedly acquired title over the said property;
11) considering that the title of the defendants have (sic) no basis in law and in fact
and that the same was illegally, unlawfully and maliciously issued by the Register of
Deeds on the basis of forged and falsified and none [sic] existing documents as basis
for issuance thereof, the same may be cancelled and defendants have no right to
take possession of the real property thereon including the portion pertaining to the
herein plaintiffs consisting of 114,987 square meters more less, said title creates
cloud on the title of plaintiffs and by predecessors-in-interest and as such plaintiffs
could not deal on said property and complete transactions thereto, thereby irrepa-
rable damage (sic);
12) as a result of the illegal, unlawful, unjust and malicious actuations of the de-
fendants, plaintiffs were deprived of the use of the said parcel of land unlawfully and
illegally occupied by them and they failed to introduce the necessary improvements
thereon and for which they suffered damages in the amount of not less than
P50,000.00;
13) in view of the bad faith, illegal and unlawful actuations of the defendants in
obtaining title over the property [, plaintiffs] suffered from sleepless nights, anxiety,
mental anguish for while (sic) they are also entitled to claim for moral damages in
the sum of P100,000.00;
14) despite repeated demands from the plaintiffs for the defendants to desist from
enclosing the titled property with a fence, the latter without any lawful right insisted
and actually enclosed their property with a fence, causing irreparable damage and
prejudice to the plaintiffs;
15) in view of the illegal, unlawful, malicious and bad faith of defendants and disre-
gard of the right of the plaintiffs, the latter are constrained to hire the services of
counsel for which they agreed to pay the sum of P50,000.00 in addition to appear-
ance of P500.00 every hearing of this case; 5 3. Anania Cervania 2186-D-3 203725 2,500 sq. m.
xxx xxx xxx
In Civil Case No. TM-206 entitled Spouses Eduardo and Felicisima Tirona, et al., vs.
Spouses Sonia (sic) Mathay, et al., for "Quieting of Title, Annulment of Title and
Recovery of Possession with damage;" etc.
PLAINTIFFS, allege that:
3) on December 31, 1985, Spouses Bonifacio Motas and Jualiana Motas bought a
parcel of land situated at (sic) Tanza, Cavite known as Lot 2186-B of Psu-04-01892,
containing an area of 18,943 square meters covered by Transfer of (sic) Certificate
of Title No. T-192530 of the Registry of Deeds of Cavite from David Quimio as evi-
denced by a Deed of Absolute sale;
4) Spouses Bonifacio Motas and Juliana Motas issued TCT No. T-203730 by the Reg-
ister of Deeds of Cavite;
5) Vendors David Quimio, Sr., et al., are the previous registered owners of said
parcel of land as evidenced by TCT No. T-192530;
6) Vendors David Quimio, Sr., whose title was transferred to Motas have obtained
rights and interest thereon from their predecessors who were vendees from the
Bureau of Lands which confirmed in the Decision of then Court of First Instance of
Cavite in Civil Case No. 809 entitled Tomas Lucido vs. Juana Batallones and Petronila
Quimio, et al., issued on January 30, 1981;
7) said parcel of land was subdivided under Psu-04-01763 into eight lots as evi-
denced by Sub-division Plan; (sic)
8) plaintiffs bought the subdivided lots from Motas in good faith, and issued Transfer
Certificates of Titles by the Office of the Register of the Register of Deeds of Cavite,
as follows:
Name Lot TCT No. Area
1. Sps Eduardo 2186-D-6 203728 3,000 sq. m.
Felicisima Tirona 2186-D-1 203723 741 sq. m.
2. Soledad Motas & Sps. 2186-D-8 206078 3,409 sq. m.
Ignacio San Jose &
Lucila San Jose 2186-D-8 206078 1,591 sq. m.
4. Ricardo Malabanan 2186-D-4 203726 2,500 sq. m.
5. Plocerfina Tanyag 2186-D-2 203724 700 sq. m.
6. Ruperta Bartolome 2186-D-5B 220606 550 sq. m.
2186-D-5C 220607 700 sq. m.
2186-D-5D 220608 700 sq. m.
2186-D-A 220605 550 sq. m.
9) plaintiffs are the one (sic) paying the corresponding real property taxes thereon
and were issued corresponding tax declaration by the Office of the Provincial Asses-
sor of Cavite;
10) plaintiffs have come to know that defendants Spouses Sonia (sic) Mathay and
Ismael Mathay, Jr. have enclosed among others said real properties of the plaintiffs
with a fence and took physical possession thereof without the knowledge and con-
sent of the plaintiffs;
11) plaintiffs have learned also that defendants have also issued Transfer Certificate
of the Title covering among others the same land titled in the name of the plaintiffs
under Transfer Certificate of Title No. T-113047;
12) the title issued to defendants was the product of forgery because it was based
on an alleged Transfer of Certificate of Title No. 3444 in favor of Pedro Banayo and
Pablo Pugay of Trece Martires City who have no right whatsoever on the real estate
in question and who have been in prior physical possession thereof, as such said
title is void-ab-initio;
13) upon investigation, it was certified by the Bureau of Lands that the said titles
were based on falsified and forged documents because alleged Deed No. V-12918
which was the basis for the issuance thereof, was issued to one Jack C. Gallado for
Lot 18, Block 56, Tala Estate situated in Caloocan City and that there was no records
in the Bureau of Lands that Deed No. V-12918 was issued for Lot 2886, S.C. Malabon
Estate, Cavite in favor of Pedro Banayo and Pablo Pugay to whom defendants have
allegedly acquired title over the said property;
14) the title of the defendants have no basis in law and in fact and that the same
was illegally, unlawfully and maliciously issued by the Register of Deeds of Cavite on
the basis of forged and falsified and none [sic] existing documents;
15) said Transfer Certificate of Titles were illegally and unlawfully issued without
basis in favor of defendants Mathay and their predecessors-in-interest, creating a
cloud on the titles of the plaintiffs and as such may be declared null and void;
16) plaintiffs have the right to exclude defendants Mathays from their enjoyment of
their property and considering that said defendants have been duly informed of the
insisted and continue to insist in the enjoyment of the right from a void title;
17) as a result of the illegal, unlawful, unjust and malicious actuations of the de-
fendants, plaintiffs were deprived of the use of the said parcel of lands unlawfully
and illegally occupied by defendants Mathay as they failed to introduce the necessary
improvements thereon and for which they suffered damages in the amount of not
less than P50,000.00 and the amount of P500.00 a month for each lot as reasonable
compensation for the use of their lands;
18) in view of the bad faith, illegal and unlawful actuations of the defendants in
obtaining titles over the property in question thru forged and falsified documents,
plaintiffs suffered from sleepless nights, anxiety, mental anguish for which they are
also entitled to claim for moral damages in the sum of P150,000.00;
19) in view of the illegal, unlawful, malicious and bad faith of the defendants and in
disregard of the right of the plaintiffs, the latter are constrained to hire the services
of counsel for which they agreed to pay the sum of P50,000.00 in addition to an
appearance fee of P1,000.00 every hearing. 6 On appeal, the Court of Appeals culled from the records on hand the following, facts
xxx xxx xxx
After trial of the merits, the lower court decided for defendant spouses Sonya Mathay
and Ismael Mathay, Jr., and against the plaintiffs in the three consolidated cases;
disposing, thus:
WHEREFORE, foregoing considered, (sic) judgment is hereby rendered in favor of
the defendants:
a) declaring Contract of Sale 3397 in favor of Tomas Lucido, the Assignment of Sale
Certificate No. 3397 issued by Tomas Lucido in favor of Onofre Batallones and Norb-
erto Quimio, the Deed Conveyance in favor Onofre Batallones and Norberto Quimio
and Transfer Certificate of Title No. 85866 in the name of Onofre Batallones and
Norberto Quimio, as null and void;
b) declaring Transfer Certificates of Title No. T-195350, T-195351, T-192527, T-
192529, T-192528, T-192532, T-252996, T-252997, T-252998, T-252999, T-
253000, T-253001, T-253002, T-253003, T-253004, T-253005, T-253037, T-
206078, T-203724, T-220506, T-220607, T- 220608, T-220605, T-203728, T-
203726, T-203730, T-203723 and T-203725, as null and void, and directing the Reg-
ister of Deeds of Cavite Province to cancel them;
c) ordering Spouses Teodulfo Atangan & Sylvia Atangan, Onofre Batalloness, Norerto
(sic) Quimio, Spouses Tomas Lucido and Juana Batallones, Agustin Poblete, Juancho
Albert Poblete, Spouses Bonifacio Motas and Juliana Motas, Soledad Mateo, Ricardo
Malabanan, Florcerfina Bartolome, Spouses Eugenio Bartolome and Ruperto Barto-
lome, Spouses Eduardo Tirona and Felicisima Tirona and Anania Gervania (sic) to
surrender to the Office of the Register of Deeds of Cavite their owner's copy of their
Transfer of Certificates of Title covering portions of Lot 2186;
d) declaring TCT No. T-11304 [sic] 7 valid and the defendants to have superior rights
to the property in question and to be the true and lawful owners of the same;
e) ordering plaintiffs jointly and severally liable to pay defendants attorney's fees of
P50,000.00 and to pay the costs;
f) denying all their claims of the parties for lack of basis in law and/or evidence.
SO ORDERED.
8, to wit:
Plaintiffs-appellants and defendants-appellees are all holders of Transfer Certificates
of Title which all appear duly issued by the Register of Deeds of Cavite.
Plaintiffs derived their titles as follows:
The land claimed by the parties is known as Lot 2186 of the Sta. Cruz de Malabon
Estate originally consisting of 174,914 sq. meters and previously covered by a survey
in the name of plaintiffs predecessor-in-interest Heirs of Onofre Batallones and Heirs
of Patronillo Quimio and Tomas Lucido evidenced by Psd 04-010692 (Exh. A).9
Heirs of Batallones and Patronillo Quimio were issued TCT No. 85866 on August 9,
1976 (Exh. C). 10 On July 13, 1976, the Director of Lands transmitted to the Register
of Deeds of Cavite the Deeds of Conveyance and for issuance of corresponding TCT
to the Heirs of Onofre Batallones and Norberto Quimio represented by Jauna S.
Batallones and Patronillo Quimio (Exh. K). 11 The original vendee of said lot from the
Bureau of Land was Tomas Lucido who was issued contract of Sale 3397 dated
executed by Juana Batallones, et al., and Tomas Lucido whereby the land covered
by TCT No. T-85866 of the Register of Deeds was subdivided into six (6) lots known
as Lots 2186-A, 2186-B, 2186-C, 2186-D, 2186-E, and 2186-F, pursuant to approved
technical descriptions and subdivision plan Psd-04-10692, and that lots 2186-A con-
taining an area of 9,100 sq. meters and lot 2186-C containing an area of 24,700
were assigned to Tomas Lucido while the rest of the lots assigned to Juana Batal-
The lones et al., (Exh. FF). 20 After securing clearance from the Department of Agrarian
Reform (Exh. PP-1) 21 and payment of required fees and compliance with the re-
quirements or registration the Register of Deeds of Cavite, Trece Martirez (sic) City
issued the corresponding Transfer Certificates of Title to the Heirs of Batallones and
Quimio and Tomas Lucido, as follows:
Lot 2186-A TCT No. 192527 Lucido Tomas (sic)
Exh. E. V-2 22

March 16, 1936 (Exh. M). 12 Lucido assigned his rights over said parcel of land to Lot 2186-B TCT No. 192528 Exh. AAA 23

Onofre Batallones and Norberto Quimio on October 17, 1944 evidenced by assign- Lot 2186-C TCT No. 192529 Tomas Lucido
ment of Sale Certificate No. 3397 (Exh. N). 13 In an [O]rder dated June 18, 1976, Exh. D. V-3 24

said assignment was approved by the Director of Lands (Exh. O). 14 On July 1, 1976 Lot 2186-D TCT No. 192530
the then Department of Natural Resources through Jose A. Janalo, Assistant Secre- Lot 2186-E TCT No. 192531 Exh. AAA-1
tary issued Sales Certificate No. 3397, Deed No. T-11692 to Heirs of Batallones and Lot 2186-F TCT No. 192532 Exh. G 25

Quimio (Exh. Q). 15 On June 18, 1976, the Bureau of Lands forwarded to the De- Tomas Lucido married to Eustaquia Villanueva who was the registered owner of lot
partment of Natural Resources for signature the Deeds of Conveyance in favor of 2186-A, TCT No. 192527 (Exh. E; V-2) 262186-A sold to plaintiffs Teodulfo P. Atangan
Heirs of Batallones and Quimio (Exh. S). 16 married to Sylvia Atangan 27 evidenced by a Deed of Absolute Sale [e]xecuted on
After the Heirs of Batallones and Quimio were duly issued TCT No. 85866 17 on July 12, 1985 (Exh. U-1). 29 and another Deed of Sale for lot 2186-C (Exh. U) 29

August 9, 1976, Tomas Lucido filed Civil Case No. NC 709 before the then Court of Plaintiffs Atangan were duly issued TCT Nos. T-195350 for lot 2186-A and TCT No.
First Instance of Cavite, Branch 1, Naic, Cavite (Exh. GG) 18 which ended in a Deci- T-195351 for lot 2186-C (Exhs. V-1 and V, respectively). 30 Said plaintiffs paid the
sion by said court based on a Compromise Agreement duly executed by Juana Onate corresponding taxes thereon (Exh. U-6, U-7) 31 and they were duly issued tax dec-
Batallones representing the heirs of Onofre Batallones and Patronillo Onate Quimio, laration No. 11677 and Tax Declaration No. 11679 (Exh. U-4, U-3, respectively). 32

representing the heirs of Norberto Quimio and pursuant thereto 35,000 sq. meters
on the southern portion was given to Tomas Lucido married to Eustaquia Villanueva
while the remaining portion of Lot 2186 pertained and belonged to the defendants
Heirs of Batallones and Heirs of Norberto Quimio (Exh. Y). 19 Pursuant to the Ap-
proved Compromise Agreement in the said decision (Exh. Y), a deed of partition was
Juana Batallones, et al., sold lot 2186-F to plaintiffs Agustina Poblete, married to
Amor Poblete, Juancho Albert A. Poblete, and Juliana Motas married to Bonifacio
Motas 33 evidenced by a deed of absolute sale executed on June 8, 1988 (Exh. XX).
34 Said parcel of land was subdivided under Sub. plan Psd-04-0106-92, and, as a
result the following Certificate of Title were issued to the following plaintiffs:
Lot 2186-F-1 TCT No. T-252996 Agustina Poblete 2 Soledad Mateo (sic) & 2186-D-8 206078 3,409 sq. m.
Exh. SS 35 Sps. Ignacio San Jose
Lot 2186-F-2 TCT No. T-252997 — do — & Lucila San Jose 2186-D-8 206078 1,591 sq. m.
Exh. SS-1 36 3 Anania Cervania 2186-D-3 203725 2,500 sq. m.
Lot 2186-F-3 TCT No. T-252998 — do — 4 Ricardo Malabanan 2186-D-4 203726 2,500 sq. m.
Exh. SS-2 37 5 Plocerfina Tanyag 2186-D-2 203724 700 sq. m.
Lot 2186-F-4 TCT No. 252999 — do — 6 Ruperta Bartolome 2186-D-5B 220606 550 sq. m.
Exh. SS-3 38 2186-D-5C 220608 700 sq. m.
Lot 2186-F-5 TCT No. T-253000 Juancho Albert Poblete 2186-D-5D 220608 550 sq. m.
Exh. SS-4 39 2186-D-A 220605 550 sq. m.
Lot 2186-F-6 TCT No. T-213001 — do — 1. Sps Eduardo R. Tirona Exh. SS-11 47

Exh. SS-5 40 Exh. SS-12

Lot 2186-F-7 TCT No. T-253002 Juancho Albert Poblete 2. Soledad Motas & Sps. Ignacio Exh. NN-1 48

Exh. SS-6 41 San Jose & Lucila San Jose Exh. SS-13
Lot 2186-F-8 TCT No. T-253003 Jualiana Motas 3. Anania Servnia (sic) Exh. SS-20 49

Exh. SS-7 42 Exh. SS-19

Lot 2186-F-9 TCT No. T-253004 — do — 4. Ricardo Malabanan Exh. NN-4 50

Exh. SS-8 43 5. Plocerfina Tanyag Exh. NN-3 51

Lot 2186-F-10 TCT No. T-253005 — do — 6. Ruperta Malabanan Exh. NN-6 52

Exh. SS-9 44 Exh. NN-7

Lot 2186-F-11 TCT No. T- 253007 — do — Exh. NN-8
Exh. SS-10 45 Exh. NN-9
David Quimio, owners of lot 2186-D, TCT No. 19530 sold the same to plaintiffs Jua- 7. Plaintiff Juliana Motas & Lot No. 2186-D
liana Motas married to Bonifacio Motas evidenced by a notarized deed of absolute Bonifacio Motas TCT No. 203730
sale dated December 31, 1985 (Exh. VV). 46 Said lot contained an area of 18,943 Exh. VV-1 53

sq. meters more or less. She was issued TCT No. T-201592 by the Register of Deed
(sic) of Cavite. Plaintiffs Motas caused said lot to be subdivided under Psd-017063
and sold the same to plaintiffs Tirona, et al., in Civil Case No. TM-206 and corre-
sponding Transfer Certificates of Titles were issued to the sail plaintiffs as follows:
Name Lot TCT No. Area
1 Sps Eduardo & 2186-D-6 203728 3,000 sq. m.
Felicisima Tirona 2186-D-1 203723 741 sq. m.
Said plaintiffs were duly issued corresponding Tax Declaration and have paid the
realty taxes 54 thereon and they were in actual possession of the contested parcels
of land until the same were fenced by defendants Mathay's men over their objection
and upon inquires, they discovered that the defendants Mathay were issued TCT No.
T-113047 covering same parcel of land (Exh. 2)55 based on a Deed of Absolute
[S]ale executed allegedly on 21 May 1980 by Pedro Banayo and Pablo Pugay (Exh.
3) 56 and notarized by Manalad Santera (Exh. 3-A). 57
Defendants-appellees Spouses Sonya Mathay and Ismael Mathay, Jr. claimed that
the land described as Lot 2186 of the Sta. Cruz de Malabon Estate, situated in Tanza,
Cavite, containing an area of 174,917 square meters covered by TCT No. T-111070
(Exh. 8), 58 registered in the name of Pedro Banayo and Pablo Pugay on February
28, 1980 was purchased by the defendants from Pedro Pugay on May 31, 1980 (Exh.
3, 3-A), and TCT No. T-113047 (Exh. 2) 60 was issued in their favor on June 3, 1980
by the Office of the Register of Deeds of Cavite Province, declared for taxation pur-
posed (sic) (Exh. 4, 5) 61 and corresponding taxes paid (Exh. 18, 19, 20, 21, 22). 62
It appears that Director of Lands Ramon N. Casanova, under the Deed No. V-12918
and Sales Certificates No. 2454 in consideration of P8,958.00 sold to Pedro Banayo
and Pablo Pugay Lot 2186 of the Sta. Cruz de Malabon Estate, friar Lands Estate,
situated in the Municipality of Tanza, Province of Cavite, containing an area of 17
hectares, 49 areas and 17 centares of the subdivision plan A-21 approved by the
Court of Land Registration on the 4th day of February, 1911 (Exh. 15) 63 with the
technical description of the land (Exh. 15-A) 64 and on February 21, 1980, a letter
addressed to the Register of Deeds for issuance of title to Pedro Banayo and Pablo
Pugay (Exh. 16) 65 which was cancelled by TCT No. 113047 issued in the name of
Spouses Sonya Mathay and Ismael Mathay, Jr., (Exh. 2), 66 and that according to
the old Sales Register Book kept in the office, Lot 2186 of the Sta. Cruz de Malabon
Estate, Cavite, is registered in the name of Pedro Banayo and Pablo Pugay (Exh. 17-
A). 67 It appears also that Pugay and Banayo were assignees of the subject lot under
Assignment of Sale Certificates No. 3397, 68 of the Bureau of Lands, with Tomas
Lucido as Assignor.
xxx xxx xxx
On November 18, 1993, the Court of Appeals came out with a judgment of reversal,
the dispositive portion of which, reads:
WHEREFORE, premises considered, judgment is rendered in favor of plaintiffs-ap-
pellants in the above-entitled three cases against defendants-appellees. The consol-
idated decision of the Regional Trial Court, Branch 23, Trece Martirez (sic) City in
Civil Case No. TM-175, Civil Case No. TM-180 and Civil Case No. TM-206 is reversed
and set aside. The defendants-appellees Register of Deeds of Cavite, Trece Martirez
(sic) City is ordered to cancel Transfer Certificate of Title No. 113047 covering Lot
2186 of Sta. Cruz de Malabon Estate in the name of Spouses Ismael and Sonya
Mathay. Spouses Ismael and Sonya Mathay are ordered to vacate Lot 2186, Sta.
Cruz de Malabon Estate, Cavite in favor of the plaintiffs-appellants.
SO ORDERED.
With the denial of their motion for reconsideration, the spouses Sonya Mathay and
Ismael Mathay, Jr. found their way to this Court via the present Petition; theorizing,
that:
I.
WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN SETTING ASIDE THE GEN-
UINE TRANSFER CERTIFICATE OF TITLE NO. 113047 OF SPS. SONYA & ISMAEL
MATHAY JR., WHO ACQUIRED THE SAID TORRENS TITLE AS BUYERS IN GOOD
FAITH, SINCE THE DOCUMENTS NECESSARY FOR THE TRANSFER, EVEN PRIOR TO
THE SALE, WERE ALL DULY FILED AND CLEARED WITH THE RE REGISTER OF
DEEDS, ASSESSOR'S OFFICE, B.I.R., AND OTHER GOVERNMENT ENTITLES. MORE-
OVER, THE LAW STATED IN "DINO VS. COURT OF APPEALS," G.R. NO. 95921,
SHOULD BE UPHELD, IN CASE OF BASELESS ASSERTION OF ALLEGED FORGERY BY
THE RESPONDENTS;
II.
WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN NOT RECOGNIZING THE
1980 TITLE OF SPS. SONYA & ISMAEL MATHAY JR. OVER AND ABOVE THE LATER
1986-88 ALLEGED TITLES OF RESPONDENTS-ATANGAN ET AL., WHICH IS CLEARLY
CONTRARY TO THE APPLICABLE LAW ON THE MATTER, NAMELY: ART. 1544 OF
THE CIVIL CODE OF THE PHILIPPINES;
III.
WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT
THE DEED OF SALE EXECUTED BY VENDORS — BANAYO & PUGAY IN FAVOR OF
VENDEES — SPS. SONYA & ISMAEL MATHAY, JR., IS DULY NOTARIZED IN SO FAR
AS THE VENDORS AND VENDEES ARE CONCERNED AND THAT, FURTHERMORE,
THE COURT OF APPEALS ERRED IN NOT CONSIDERING THE VALIDITY OF THE
PETITIONERS' DOCUMENTS, WHICH WERE ALL DULY EXECUTED.
The petitioners, spouses Sonya Mathay and Ismael Mathay, Jr., claim to be buyers
in good faith, reasoning out that TCT No. T-111070, the derivative title of their TCT
No. T-113047, appeared to be free from any encumbrance. They argue that a person
dealing on a registered land may safely rely on the correctness of the covering cer-
tificate of title and is not required to go beyond the certificate of title to determine
the condition of the property.
A purchaser in good faith and for value is defined as "one who buys property of
another, without notice that some other person has a right to, or interest in, such
property and pays a full and fair price for the same at the time of such purchase, or
before he has notice of the claims or interest of some other person in the property."
69 As a rule, he who asserts the status of a purchaser in good faith and for value,
has the burden of proving such assertion. This onus probandi cannot be discharged
by mere invocation of the legal presumption of good faith, i.e., that everyone is
presumed to act in good faith." 70
Here, petitioners cannot be categorized as purchasers in good faith. Prior to the
fencing of subject land, neither they (Mathays) nor their predecessors-in-interest
(Banayo and Pugay) ever possessed the same. In fact, at the time the said property
was sold to petitioners, the private respondents were not only in actual possession
of the same but also built their houses thereon, cultivated it and were in full enjoy-
ment of the produce and fruits gathered therefrom. Although it is a recognized prin-
ciple that a person dealing on a registered land need not go beyond its certificate of
title, it is also a firmly settled rule that where there are circumstances which would
put a party on guard and prompt him to investigate or inspect the property being
sold to him, such as the presence of occupants/tenants thereon, it is, of course,
expected from the purchaser of a valued piece of land to inquire first into the status
or nature of possession of the occupants, i.e., whether or not the occupants possess
the land en concepto de dueño, in concept of owner. As is the common practice in
the real estate industry, an ocular inspection of the premises involved is a safeguard
a cautious and prudent purchaser usually takes. Should he find out that the land he
intends to buy is occupied by anybody else other than the seller who, as in this case,
is not in actual possession, it would then be incumbent upon the purchaser to verify
the extent of the occupant's possessory rights. The failure of a prospective buyer to
take such precautionary steps would mean negligence on his part and would thereby
prelude him from claiming or invoking the rights of a "purchaser in good faith."
So also, before the fence around subject property was erected, private respondent
communicated their objection to the fencing of the area by petitioners but they were
ignored by the petitioners, who continued enclosing the premises under controversy
in the presence of armed men employed by them (petitioners).
Consequently, not being "innocent purchasers for value," within legal contemplation,
petitioner's reliance on Article 1544 of the New Civil Code is misplaced. Such stance
of their lacks legal and factual basis. The fundamental premise of preferential rights
under the law is good faith. 71
Viewed in proper perspective, we uphold the finding by the Court of Appeals that
the petitioners cannot invoke Art. 1544 of the Civil Code in view of the questionable
documents from which their title emanated. As the Court of Appeals ratiocinated:
We think the applicable rule as stated in Baltazar v. Court of Appeals, No. L-78728,
December 8, 1988, 168 SCRA 334, is that as between two persons both of whom
are in good faith and both innocent of any negligence, the law must protect and
prefer the lawful holder of registered title over the transferee of a vendor bereft of
any transmissible rights. Under the foregoing principle derived from the above case
law, the Mathays have no rights as against plaintiffs-appellants, their recourse is
against their vendors Banayo and Pugay. 72
The aforesaid ruling of the Court of Appeals accords with the Latin maxim: nemo
pofest plus juris ad alium transferre quam ipse habet. "No one can transfer a greater
right to another than he himself has". Thus, in Calalang vs. Register of Deeds of
Quezon City,73 this Court held:
Needless to state, all subsequent certificates of title including petitioner's titles are
void because of the legal truism that the spring cannot rise higher than its source.
The law must protect and prefer the lawful owner of registered title over the trans-
feree of a vendor bereft of any transmissible rights.
In sum, "defective titles cannot be upheld against the unblemished titles of the pri-
vate respondents." 74
Petitioners further submit that requiring them to inquire beyond the face of the tor-
rens title defeats the primordial objective of the torrens system, which is that a
person dealing on registered land has the right to rely on the torrens title.
But "a certificate is not conclusive evidence of title if it is shown that the same land
had already been registered and an earlier certificate for the same is in existence."
75 In the case at bar, as borne out by pertinent records, the private respondents
obtained their rights and title from TCT No. T-85866, which was registered on August
9, 1976 under the name of Heirs of Onofre Batallones and Patronillo Quimio. On the
part of petitioners, their supposed title originated from a spurious title of Pedro Ba-
nayo and Pablo Pugay illegally registered on February 28, 1980.
So also, where two transfer certificates of title have been issued on different dates,
to two different persons, for the same parcel of land, even if both are presumed to
be title holders in good faith, it does not necessarily follow that he who holds the
earlier title should prevail. On the assumption that there was regularity in the regis-
tration leading to the eventual issuance of subject transfer certificates of title, the
better approach is to trace the original certificates from which the certificates of title
in dispute were derived. Should there be only one common original certificate of
title, as in this case under consideration, the transfer certificate issued on an earlier
date along the line must prevail, absent any anomaly or irregularity tainting the
process of registration.
In light of the attendant facts and circumstances, there is therefore a need to refer
to the background or history of the land under controversy. As conceded by peti-
tioners, their TCT No. T-113047 was derived from TCT No. 111070 under the names
of Pedro Banayo and Pablo Pugay. Hence, the necessity of looking into and deter-
mining the legitimacy of the title of the two, Banayo and Pugay.
In an effort to support their claim of ownership over subject Lot 2186, Pedro Banayo
and Pablo Pugay presented two theories. First, they theorize that on October 17,
1970, under Assignment of Sale Certificate No. 3397, 76 Tomas Lucido assigned and
transferred to them all his interests in the contested land. Their second theory is
that subject real property was sold to them by then Director of Lands Ramon N.
Casanova, under Deed No. V-12918 and Sales Certificate No. 2454. 77
After a careful examination of germane records, however, we are of the conclusion,
and so find, that the aforestated theories of Pedro Banayo and Pablo Pugay are
without any factual and legal basis.
The assignment of Sales Certificate No. 3397 allegedly executed by Tomas Lucido in
favor of Pedro Banayo and Pablo Pugay was not signed by the said Tomas Lucido.
Neither does it bear the signature of the latter. Worse, the same Tomas Lucido
testified on the witness stand, 78 that he does not know Pedro Banayo and Pablo
Pugay, and he never received P50,000.00 from them. What is more, Tomas Lucido
reiterated that he really sold the land in question to the herein private respondents,
spouses Teodulfo Atangan and Sylvia Atangan, the plaintiffs in Civil Case No. TM-
175, as shown by the two Deeds of Sale 79 he executed in favor of the said spouses.
Teodulfo Atangan and Sylvia Atangan.
To reinforce their aforesaid second theory, Banayo and Pugay declared that, for and
in consideration of Eight Thousand Nine Hundred Fifty Eight (P8,958.00) Pesos, for-
mer Director of Lands Ramon Casanova issued Deed No. V-12918 with Sales Certif-
icate No. 2454, which Deed was the basis of the issuance to them of TCT No. T-
111070 by the Register of Deeds of the Province of Cavite.
But Mr. Marcelino Freiras, Chief of Reservation and Special Land Grant Section of
the Bureau of Lands, stressed that the signature of former Lands Director Ramon
Casanova on the said Deed No. V-12918 with Sales Certificate No. 2454, was forged.
According to him (Freiras), having worked with him for the past thirty (30) years, he
is familiar with the signature of Director
Casanova. 80
Then, too, in a letter 81 addressed to Atty. Franco Loyola, counsel for private re-
spondents, the same Mr. Freiras informed that, as indicated by the entries in the
Deed of Conveyance Book, 82 Deed V-12918 was issued on October 10, 1979, for
Lot No. 18, Block 16, Tala Estate, Caloocan City, in the name of one Zaida C. Calado,
and not for the subject land, identified as Lot 2186 of Sta. Cruz de Malabon Estate.
Cavite City, originally registered under the names of the Heirs of Onofre Batallones
and Patronillo Quimio. In another letter 83 sent in answer to the query of Juana
Motas, one of the plaintiffs in Civil Case No. TM-180, Alicia V. Dayrit, Office Caretaker
of Land Management Division of the Bureau of Lands, corroborated what Mr. Freiras
disclosed, as aforementioned. In her said letter, Alicia V. Dayrit revealed to Mrs.
Motas that there is really no record of any Deed No. V-12918 issued for Lot 2186 of
Sta. Cruz de Malabon Estate, Cavite City, in favor of Pedro Banayo and Pablo Pugay,
and that what appears in the Registry Book of Deeds of Conveyance is Deed of
Conveyance No. V-11692 issued on July 1, 1976 in favor of Onofre Batallones and
Norberto Quimio by the then Secretary of Natural Resources which Deed pertains to
Lot 2186 of Sta. Cruz de Malabon Estate. The aforesaid revelations were corrobo-
rated in open court by witness Freiras. 84 Further, the Court detected discrepancies
in the entries of the documents above mentioned. Pedro Banayo and Pablo Pugay
contended that by virtue of Sales Certificate No. 2454, the then Director of Lands
Ramon Casanova issued Deed V-12918, on February 18, 1980. 85 However, after a
meticulous examination of the evidence on record, the Court noticed that former
Director Ramon Casanova issued another Deed V-12918 but, bearing Sales Certifi-
cate No. 3397 and dated February 19, 1980. 86 It should be remembered that Pedro
Banayo and Pablo Pugay declared that the issuance of TCT No. T-111070 in their
favor was based on the said two documents, both bearing the signature of Director
Casanova.
The foregoing observations jibe with the revelation of Freiras that the alleged signa-
tures of former Lands Director Ramon Casanova appearing on the said documents
in question were forged. Also strengthened thereby is the testimony of Mrs. Adelwisa
O. Ong, former Record Officer and now Acting Administrative Officer of the Bureau
of Lands in Cavite, that subject land was patented under Deed No. V-11692, regis-
tered under the name of the Heirs of Onofre Batallones and Norberto Quimio, and
the name of Tomas Lucido was mentioned in the Old Sales Register Book as he was
the approved vendee of the same. 87
Besides, it is too evident to be overlooked that the number of the Sales Certificate
of the second Deed V-12918 (bearing Sales Certificate No. 3397) is the same number
of the Sales Certificate appearing in the Assignment of Sale allegedly executed by
Tomas Lucido in favor of Pedro Banayo and Pablo Pugay. This fact alone, which this
Court cannot ignore, is fatal to the cause of Pedro Banayo and Pablo Pugay.
Furthermore, the circumstances surrounding the execution of the Deed of Absolute
Sale 88 by Pedro Banayo and Pablo Pugay in favor of the spouses Sonya Mathay and
Ismael Mathay, Jr. beclouded the issuance of TCT No. 113047. 89 Records disclose
that the said Deed of Absolute Sale did not comply with legal formalities and was
not duly notarized. Atty. Mapalad Santera, who signed the document as Notary Pub-
lic, had no commission as Notary Public for the Province of Cavite, at the time subject
document was supposedly
notarized, 90 and the residence certificates of vendors Banayo and Pugay appeared
to be of dubious source. 91
To bolster their submission that their title is genuine and authentic, private respond-
ents introduced several documentary evidence. They also presented officials con-
cerned and the caretakers of the said documents, who all testified for the private
respondents.
On the other hand, the petitioners, spouses Sonya Mathay and Ismael Mathay, Jr.,
who claim to be buyers in good faith, utterly failed to discharge the burden of proving
the sustainability of their posture. Worse for them, as above discussed, the title of
Pedro Banayo and Pablo Pugay relied upon by petitioners has been shown by pre-
ponderance of evidence to be the product of forgery.
All things studiedly considered, we are of the irresistible conclusion that the respond-
ent Court of Appeals did not err in reversing the appealed decision of the trial court.
WHEREFORE, the Petition is DISMISSED for lack of merit, and the Decision of the
Court of Appeals in CA-GR CV No. 37902 AFFIRMED in toto. No pronouncement as
to costs.SO ORDERED.
FIRST DIVISION
G.R. No. 110544 October 17, 1995
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros
Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A.
VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL
LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A.
VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FOR-
MER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS
ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME
BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition under Rule
65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan
dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in
Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda,
et al." denying petitioners' motion for suspension of their arraignment.
The present controversy arose from the following antecedents:
On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan
were designated as industrial labor sectoral representative and agricultural labor
sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Prov-
ince of Negros Oriental by then Secretary Luis T. Santos of the Department of Local
Government. Private respondents Binaohan and Estrellanes took their oath of office
on 16 February 1989 and 17 February 1989, respectively.
Subsequently, petitioners filed an undated petition with the Office of the President
for review and recall of said designations. The latter, however, in a letter dated 20
March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize
private respondents as sectoral representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the Regional
Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661,
for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July
1991.
Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court
of Dumaguete City to declare null and void the designations of private respondents
as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tu-
anda, et al. versus Secretary of the Department of Local Government, et al."
On 21 July 1991, an information was filed before the Sandiganbayan, docketed as
Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda,
et al." charging petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special Prosecutor, hereby ac-
cuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM,
NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V.
SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019,
as amended, committed as follows:
That during the period from February 1989 to February 1991 and subsequent
thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction
of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA,
Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM,
NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V.
SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the
performance of their official functions and taking advantage of their public positions,
with evident bad faith, manifest partiality, and conspiring and confederating with
each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral
Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite
demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS
(P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS
(P108,900.00) representing respectively their per diems, salaries and other privi-
leges and benefits, and such undue injury continuing to the present to the prejudice
and damage of Bartolome Binaohan and Delia Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for sus-
pension of the proceedings in Criminal Case No. 16936 on the ground that a preju-
dicial question exists in Civil Case No. 9955 pending before the Regional Trial Court
of Dumaguete City.2
On 16 January 1992, the Regional Trial Court rendered a decision declaring null and
void ab initio the designations issued by the Department of Local Government to the
private respondents as sectoral representatives for having been done in violation of
Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code.3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al.,
G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012,
87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24,
1990, ruled that:
B.P. Blg. 337 explicitly required that before the President (or the Secretary of the
Department of Local Government) may appoint members of the local legislative bod-
ies to represent the Industrial and Agricultural Labor Sectors, there must be a de-
termination to be made by the Sanggunian itself that the said sectors are of sufficient
number in the city or municipality to warrant representation after consultation with
associations and persons belonging to the sector concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules and Regulations of the Local Government
Code even prescribe the time and manner by which such determination is to be
conducted by the Sanggunian.
Consequently, in cases where the Sanggunian concerned has not yet determined
that the Industrial and Agricultural Labor Sectors in their particular city or munici-
pality are of sufficient number to warrant representation, there will absolutely be no
basis for the designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector concerned
to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to con-
sult with associations and persons belonging to the sector concerned. Consultation
with the sector concerned is made a pre-requisite. This is so considering that those
who belong to the said sector are the ones primarily interested in being represented
in the Sanggunian. In the same aforecited case, the Supreme Court considers such
prior determination by the Sanggunian itself (not by any other person or body) as a
condition sine qua non to a valid appointment or designation.
Since in the present case, there was total absence of the required prior determina-
tion by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the
designations of private defendants as sectoral representatives null and void.
This verdict is not without precedence. In several similar cases, the Supreme Court
invariably nullified the designations where the requirements of Sec. 146 (2), B.P.
Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of Valenzuela that the sectors
concerned are of sufficient number to warrant representation and there was no con-
sultation whatsoever with the associations and persons belonging to the Industrial
and Agricultural Labor Sectors. Therefore, the appointment of private respondents
Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon.
Luis Santos, et al., G.R. No. 86394, August 24, 1990).4
Private respondents appealed the aforestated decision to the Court of Appeals, dock-
eted as CA-G.R. CV No. 36769, where the same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution
denying the motion for suspension of proceedings filed by petitioners. Said respond-
ent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros
Oriental, it appears, nevertheless, that the private complainants have been rendering
services on the basis of their respective appointments as sectoral members of the
Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their
said appointments enjoy the presumption of regularity. Having rendered such ser-
vices, the private complainants are entitled to the salaries attached to their office.
Even assuming arguendo that the said Regional Trial Court shall later decide that
the said appointments of the private complainants are null and void, still the private
complainants are entitled to their salaries and compensation for service they have
actually rendered, for the reason that before such judicial declaration of nullity, the
private complainants are considered at least de facto public officers acting as such
on the basis of apparently valid appointments issued by competent authorities. In
other words, regardless of the decision that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the
services they have actually rendered as sectoral representatives of the said Sanggu-
niang Bayan. Hence, the decision that may be rendered by the Regional Trial Court
in Civil Case No. 9955 would not be determinative of the innocence or guilt of the
accused.
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of
Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack
of merit.
SO ORDERED.5
Petitioners filed a motion for reconsideration of the aforementioned resolution in
view of the decision promulgated by the trial court nullifying the appointments of
private respondents but it was, likewise, denied in an order issued by respondent
Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the
said motion were a mere rehash of petitioners' original motion to hold the case in
abeyance.6 The dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was
scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada,
Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrel-
lanes are, however, hereby ordered to show cause in writing within ten (10) days
from service hereof why they should not be cited for contempt of court for their
failure to appear in court today for arraignment.
In case of an adverse resolution on the motion to quash which is to be filed by the
counsel for the defense, set this case for arraignment, pre-trial and trial on January
4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning.
SO ORDERED.7
On 19 February 1993, respondent Sandiganbayan issued an order holding consider-
ation of all incidents pending the issuance of an extended resolution.8
No such resolution, however, was issued and in its assailed order dated 13 May
1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June
1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing
today which We deem to be excusable, reset this case for arraignment on June 30,
1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the
trial to start at 8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Con-
sidering that the accused come all the way from Himalalud, Negros Oriental, no
postponement will be allowed.
SO ORDERED.9
Hence, this special civil action for certiorari and prohibition where petitioners attrib-
ute to respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners'
motions for the suspension of the proceedings in Criminal Case No. 16936 in spite
of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No.
36769;
B. The Respondent Court acted without or in excess of jurisdiction in refusing to
suspend the proceedings that would entail a retrial and rehearing by it of the basic
issue involved, i.e., the validity of the appointments of private respondents and their
entitlement to compensation which is already pending resolution by the Court of
Appeals in C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of discretion and/or acted without
or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under
two alternative theories that private respondents are de jure and/or de facto officers
in violation of petitioners' right to due process.10
In sum, the only issue in the case at bench is whether or not the legality or validity
of private respondents' designation as sectoral representatives which is pending res-
olution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the
proceedings in the criminal case against petitioners.
A prejudicial question is one that must be decided before any criminal prosecution
may be instituted or before it may proceed (see Art. 36, Civil Code) because a deci-
sion on that point is vital to the eventual judgment in the criminal case. Thus, the
resolution of the prejudicial question is a logical antecedent of the issues involved in
said criminal case.11
A prejudicial question is defined as that which arises in a case the resolution of which
is a logical antecedent of the issue involved therein, and the cognizance of which
pertains to another tribunal. The prejudicial question must be determinative of the
case before the court but the jurisdiction to try and resolve the question must be
lodged in another court or tribunal.12 It is a question based on a fact distinct and
separate from "the crime but so intimately connected with it that it determines the
guilt or innocence of the accused, and for it to suspend the criminal action, it must
appear not only that said case involves facts intimately related to those upon which
the criminal prosecution would be based but also that in the resolution of the issue
or issues raised in the civil case, the guilt or innocence of the accused would neces-
sarily be determined. It comes into play generally in a situation where a civil action
and a criminal action are both pending and there exists in the former an issue which
must be preemptively resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be determinative juris
et de jure of the guilt or innocence of the accused in the criminal case."13
The rationale behind the principle of prejudicial question is to avoid two conflicting
decisions.14 It has two essential elements:
(a) the civil action involves an issue similar or intimately related to the issue raised
in the criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may
proceed.15
Applying the foregoing principles to the case at bench, we find that the issue in the
civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant
suspension of the arraignment and further proceedings in the criminal case against
petitioners.
All the elements of a prejudicial question are clearly and unmistakably present in this
case. There is no doubt that the facts and issues involved in the civil action (No.
36769) and the criminal case (No. 16936) are closely related. The filing of the crim-
inal case was premised on petitioners' alleged partiality and evident bad faith in not
paying private respondents' salaries and per diems as sectoral representatives, while
the civil action was instituted precisely to resolve whether or not the designations of
private respondents as sectoral representatives were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if there will
still be any reason to proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA
3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partial-
ity, to pay private respondents' salaries as sectoral representatives. This refusal,
however, was anchored on petitioners' assertion that said designations were made
in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and
void. Therefore, should the Court of Appeals uphold the trial court's decision declar-
ing null and void private respondents' designations as sectoral representatives for
failure to comply with the provisions of the Local Government Code (B.P. Blg. 337,
sec. 146[2]), the charges against petitioners would no longer, so to speak, have a
leg to stand on. Petitioners cannot be accused of bad faith and partiality there being
in the first place no obligation on their part to pay private respondents' claims. Pri-
vate respondents do not have any legal right to demand salaries, per diems and
other benefits. In other words, the Court of Appeals' resolution of the issues raised
in the civil action will ultimately determine whether or not there is basis to proceed
with the criminal case.
Private respondents insist that even if their designations are nullified, they are enti-
tled to compensation for actual services rendered.16 We disagree. As found by the
trial court and as borne out by the records, from the start, private respondents'
designations as sectoral representatives have been challenged by petitioners. They
began with a petition filed with the Office of the President copies of which were
received by private respondents on 26 February 1989, barely eight (8) days after
they took their oath of office.17 Hence, private respondents' claim that they have
actually rendered services as sectoral representatives has not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the
event that private respondents' designations are finally declared invalid, they may
still be considered de facto public officers entitled to compensation for services ac-
tually rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.18
One can qualify as a de facto officer only if all the aforestated elements are present.
There can be no de facto officer where there is no de jure office, although there
may be a de facto officer in a de jure office.19
WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August
1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936
are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with
the arraignment and trial of petitioners in Criminal Case No. 16936 pending final
resolution of CA-G.R. CV No. 36769.
SO ORDERED.
EN BANC
G.R. No. L-13744 November 29, 1918
JOSE LINO LUNA, petitioner-appellant,
vs.
EULOGIO RODRIGUEZ, respondent-appellant;
SERVANDO DE LOS ANGELES, respondent.
Ramon Diokno and Agapito Ygnacio for petitioner.
Sumulong & Estrada for respondent.

JOHNSON, J.:
It appears from the record that an election for the office of governor of the Province
of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna,
Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The
election was closed, the votes cast in the various municipalities were counted, and
a return was made by the inspectors of said municipalities to the provincial board of
canvassers, who, after a canvass of said returns, proclaimed the following result:
(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Ser-
vando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received
a plurality of said votes, was duly elected governor of said province.
Against said proclamation Jose Lino Luna presented a protest in the Court of First
Instance. Upon said protest issue was joined, hearing was had and a decision was
rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs.
Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new
trial was had at which the Honorable William E. McMahon, judge, presided. Addi-
tional evidence was adduced. After a consideration of all of the facts and the evi-
dence adduced at both trials, Judge McMahon reached the conclusion that the ballots
cast for the various candidates were as indicated in the returns of the inspectors of
the various municipalities except those in the municipality of Taytay and Binangonan.
In the municipality of Taytay, Judge McMahon found from the evidence that 50 bal-
lots cast for Eulogio Rodriguez should not have been counted for him, and ordered
that number of votes deducted from his total. In the municipality of Binangonan,
Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m.,
and that a large number of persons voted after that time, and directed that the total
vote of Eulogio Rodriguez should be reduced by the number of such votes, without
ascertaining how many had been cast for Rodriguez and how many for Luna. By
deducting the said votes in the municipality of Taytay and those cast after six o'clock
p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino
Luna had received a plurality of the legal votes cast at said election and ordered the
provincial board of canvassers to correct its canvass accordingly. From that conclu-
sion both parties to the contest appealed to this court and made several assignments
of error.
Considering all of said assignments of error, we find that they present, in fact, but
three questions:
(1) What is the effect of holding the polls open after the hour fixed for closing the
election?
(2) What is the effect of assistance rendered by the inspectors of the election to
incapacitated persons, without first requiring of such persons an oath to the effect
that they are incapacitated to prepare their own ballots?
(3) What is the effect of a failure on the part of the authorities to provide proper
voting booths?
With reference to the first question, the law provides that "at all the elections held
under the provisions of this Act the polls shall be open from seven o'clock in the
morning until six o'clock in the afternoon, during which period not more than one
member of the board of inspectors shall be absent at one time, and then for not to
exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No.
2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions
with reference to the time of opening and closing the polls mandatory? It is admitted
in the present case that the polls were not closed at 6 p.m. The record shows that
at 6 p.m. a large number of voters had not yet been able to vote and that, for that
reason, an agreement was made between some of the candidates for office who
were present and the board of inspectors, to the effect that the polls should be kept
open in order that such electors might vote. No objection whatever to that agree-
ment was made by any person at that time.
One of the reasons why all of the voters of the municipality had not voted before 6
p.m. was that the board of inspectors failed to have the list of voters properly pre-
pared at 7 a.m., and therefore but few of the voters were able to vote before eleven
or eleven-thirty in the morning. That failure, on the part of the board of inspectors,
made it impossible for many of the voters of the municipality of Binangonan to vote
before the regular time for the closing of the polls.
Shall the ballot of an innocent voter, who is prevented, through no fault of his, from
casting the same before 6 p.m. be annulled for the simple reason that the polls were
kept open, after the hour designated by the law, for the purpose of giving such voter
an opportunity to vote?
Experience and observation has taught legislatures and courts that, at the time of a
hotly contested election, the partisan spirit of ingenious and unscrupulous politicians
will lead them beyond the limits of honesty and decency and by the use of bribery,
fraud and intimidation, despoil the purity of the ballot and defeat the will of the
people at the polls. Such experience has led the legislatures to adopt very stringent
rules for the purpose of protecting the voter in the manner of preparing and casting
his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)
The infinite ingenuity of violent partisan spirit in evading the rules and regulation of
elections and the use of bribery, fraud and intimidation has made necessary the
establishment of elaborate and rigid rules and regulations for the conduct of elec-
tions. The very elaborateness of these rules has resulted in their frequent violation
and the reports of the courts are replete with cases in which the result of an election
has been attacked on the ground that some provision of the law has not been com-
plied with. Presumably, all the provisions of the election laws have a purpose and
should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9
R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)
It has been announced in many decisions that the rules and regulations, for the
conduct of elections, are mandatory before the election, but when it is sought to
enforce them after the election they are held to be directory only, if that is possible,
especially where, if they are held to be mandatory, innocent voters will be deprived
of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90
Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.)
In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the
Election Law does not provide that a departure from a prescribed form will be fatal
and such departure has been due to an honest mistake or misrepresentation of the
Election Law, and such departure has not been used as a means for fraudulent
practices and it is clear that there has been a free and honest expression of the
popular will, the law will be held to be directory and such departure will be consid-
ered a harmless irregularity. However, the irregularities may be so numerous as not
to be attributed to ignorance or honest mistake, but to a design to defeat the will of
the voters or to such careless disregard of the law as to amount not only to laches
but to fraudulent intent. In such cases, the election officers should be punished, the
election should be declared null and a new election held.
It has been held, therefore, very generally, that the provisions of a statute as to the
manner of conducting the details of an election are not mandatory, but directory
merely, and irregularities, in conducting an election and counting the votes, not pro-
ceeding from any wrongful intent and which deprives no legal voter of his vote, will
not vitiate an election or justify the rejection of the entire votes of a precinct. (Beh-
rensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs.
Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.)
The purpose of an election is to give the voters a direct participation in the affairs
of their government, either in determining who shall be their public officials or in
deciding some question of public interest; and for that purpose all of the legal voters
should be permitted, unhampered and unmolested, to cast their ballot. When that
is done and no frauds have been committed, the ballots should be counted and the
election should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of
the election officers, for which they are in no way responsible. A different rule would
make the manner and method of performing a public duty of greater importance
than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.)
The errors and irregularities which warrant the rejection of ballots and the annul-
ment of an election and thus deprive lawful voters of their legal right to vote, should
be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec.,
451.) It has been held that even great irregularities on the part of election officers
will not of necessity vitiate an election, where no fraud is committed or attempted,
or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs.
Vanlaningham, 11 Kan., 269.)
No complaint is made that any fraud was committed nor that any person voted who
had no right to vote, by reason of the fact that the polls were kept open after the
hour fixed by the law. It is admitted that the polls were kept open after the hour, by
the consent of all parties concerned, for the reasons and purposes above indicated.
In view of such facts, should the vote of the innocent voter be annulled and he
thereby deprived of his participation in the affairs of the government when he was
guilty of no illegal act? If the inspectors may, for one reason or another, prevent the
opening of the polls or delay the commencement of the voting until 11 o'clock in the
morning and then close the polls in the evening so as to prevent all those who desire
to vote from voting, without incurring criminal liability for a violation of the election
laws, the same motives will induce them to delay the opening of the polls until later
and thus prevent any to vote except those whom they desire.
The polls should be opened and closed in strict accord with the provisions of the
law. Voters who do not appear and offer to vote within the hours designated by the
law should not be permitted to vote after the time for closing the polls has arrived.
Upon the other hand, if the voter is prevented, during the voting hours, from voting,
and is not permitted to vote by reason of the failure of the inspectors to do their
duty, then, certainly, in the absence of some fraud, neither such votes nor the entire
vote of the precinct should be annulled simply because some votes were cast after
the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal.,
478; Pickett vs. Russell, 42 Fla., 116.)
The decisions in the various States of the United States are not uniform upon the
effect of a failure to open and close polls at the time specified by the law. In some
States such a provision has been held to be mandatory, in others directory. The
decisions seem to be based upon the language of the particular statutes discussed.
We are not inclined to the belief that the legislature intended that a failure to comply
with the law in this jurisdiction should render the entire election void, nor nullify the
votes cast after the period mentioned in the law, unless the polls were kept open
after the hour for the purpose of permitting some fraud to be committed, or for the
purpose of permitting some person to vote who had not appeared during the regular
voting hours.
The section of the law which we are discussing provides that 'not more than one
member of the board of inspectors shall be absent at one time and then for not to
exceed twenty minutes at one time." Suppose that the evidence showed that two of
the inspectors were absent at one time and for a period longer than twenty minutes,
would the courts be justified in holding that the entire election was void, in the
absence of fraud, for the reason? There is little justification for holding that one
provision of said section is mandatory and the other directory.
Our conclusion upon the first question, in view of the foregoing, is that in the present
case there seems to be no justification, under the facts, there being no fraud com-
mitted, for annulling the votes of innocent voters who were permitted by the election
inspectors to cast their votes in a legal manner after the regular hour for closing the
polls. In this conclusion, however, we do not desire to be understood to have decided
that in no case should the courts not annul and set aside an election, where fraud is
clearly proved, for a violation of the section under discussion. When the polls are
kept open after the hour prescribed by the law for the purpose of defeating the will
of the people, such a violation of the law should result in annulling and setting aside
the election of that precinct. No such facts exist in the present case. It is true, per-
haps, that a number of the votes cast after the hour for closing the polls were suffi-
cient to change the result of the election, but the result would have been the same
had those same voters been permitted to vote, except for the negligence of the
inspectors, during the regular hours for voting. There seems to be no more reason
for annulling the votes cast, after the hour for closing the election, than for annulling
the election for the reason that the inspectors failed to provide the means for voting
at the time fixed for opening the polls in the morning.
We are firmly of the opinion that instead of depriving the innocent voters of their
right to participate in the affairs of their government for irregularities committed by
the election inspectors, the latter should be proceeded against in a criminal action
for failure, on their part, to comply with the law and be punished in accordance with
section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act
No. 2711.
The various and numerous provisions of the Election Law are adopted to assist the
voters in their participation in the affairs of the government, and not to defeat that
object. When the voters have honestly cast their ballots, the same should not be
nullified simply because the officers appointed, under the law to direct the election
and guard the purity of elections, have not done their duty. The law provides a
remedy, by criminal action, against them. They should be prosecuted, and the will
of the honest voter, as expressed through his ballot, should be protected and up-
held.lawphi1.net
It may be noted in this relation that, under the law, the polls are kept open from 7
a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binango-
nan the record shows that there were 375 analfabetos (illiterate persons) and 164
other voters. The law requires an analfabeto to take an oath and that the oath shall
be filed. Naturally the inspectors require some time in (a) ascertaining whether or
not the voter is in fact an analfabeto; (b) in administering, preparing, signing and
filing the oath. Suppose one minute only is allowed for that work. Then two inspec-
tors must accompany such a voter to the booth, there assist him in preparing his
ballot and then return to their position occupied by them as inspectors. We do not
think that work could be accomplished in less than another minute and it would more
than likely occupy nearer two minutes. But admitting that it could be accomplished
in one minute, we have, at least, two minutes occupied by two inspectors for each
analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or
12 ½ hours. If the inspectors had strictly complied with the law, not all of the
analfabetos of said municipality could have voted in the eleven hours provided by
the law, not to say anything of the time necessarily occupied with the 164 other
voters of the municipality who would, at least, occupy one minute each of the time
of the inspectors, or nearly 2 1/2 hours more. With reference to this particular ques-
tion of the time necessary for each analfabeto to vote, some of the judges have
estimated that it would take, at least, five minutes of the time of the inspectors for
each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.)
From the foregoing, it was practically an impossibility for all of the voters of said
municipality to have voted in the eleven hours prescribed by the law even though
the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above
time is computed upon the theory that no time whatever is lost, that the voters
arrive one immediately after another and that no time is lost waiting for the arrival
of the voters.
With reference to the second question above presented, the law provides that:
A voter otherwise qualified who declares that he can not write, or that from blindness
or other physical disability he is unable to prepare his ballot, may make an oath to
the effect that he is so disabled and the nature of his disability and that he desires
the inspectors to assist him in the preparation of such ballot. The board shall keep
a record of all such oaths taken and file the same with the municipal secretary with
the other records of the board after the election. Two of the inspectors, each of
whom shall belong to a different political party, shall ascertain the wishes of the
voter, and one of them shall prepare the ballot of the voter in proper form according
to his wishes, in the presence of the other inspector, and out of view of any other
person. The information this obtained shall be regarded as a privileged communica-
tion. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No.
2711.)
Said quoted section provides the method by which a person who cannot prepare his
ballot may be assisted. The conditions are:
(a) That he must make an oath to the effect that he is disabled and the nature of
his disability together with the fact that he desires the inspectors to assist him in the
preparation of his ballot;
(b) That a record of said oath shall be filed with the municipal secretary with the
other records of the board of inspectors after the election; and
(c) When said oath is taken, then two of the inspectors, each of whom shall belong
to different political party, may assist him in the preparation of his ballot.
In view of said conditions, what shall be the effect of a failure to comply therewith?
Suppose, for example, that the voter is incapacitated; that the board of inspectors
are fully aware of that fact; that they failed to require of him the oath; that they
failed to keep on file the oath taken, or that one inspector only assisted said voter
in the preparation of his ballot, or that two assisted him which belonged to the same
party, shall the ballot of such an incapacitated person be rejected? Shall all of the
votes of the precinct be nullified because of the failure of the inspectors to comply
strictly with the letter of the law?
We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that
the ballots of incapacitated persons who voted without taking the oath or were as-
sisted by one inspector alone, or by two belonging to the same party, should not be
counted if such ballots could be identified. We further held that, in the absence of
fraud, all of the ballots of the precinct should not be invalidated by the mere fact
that the inspectors did not comply with their duty. Innocent voters should not be
deprived of their participation in an election for a violation of the law for which they
were in no way responsible and which they could not prevent.lawphil.net
The incapacitated persons mentioned in said section above noted are usually per-
sons who are unable to acquaint themselves with the provisions of the law. They
are, therefore, absolutely dependent upon the advice and counsel of others. Gener-
ally, they have no idea whatever as to the form and requirements in casting their
ballots. Their ignorance, however, does not relieve them from their responsibility
under the law, nor from the effect of their failure to comply therewith. (Manalo vs.
Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15,
1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)
The law intended that those votes only who are incapacitated in some way should
be assisted. To insure a compliance with the law an oath of incapacity is required.
To prove that only such persons have received assistance, the election board is re-
quired to keep a record of such oath. To guarantee that such voters should not be
imposed upon, the law wisely provided that two inspectors of different political faith
should assist them. Upon the other hand, if the inspectors have failed or declined to
perform a duty or obligation imposed upon them by the Election Law, they may be
punished.
The record shows that in many of the municipalities of the Province of Rizal, during
the election in question, a great many incapacitated persons voted without taking
the oath required and were assisted by one inspector only in the preparation of their
ballots. But, in view of the fact that such ballots have not been identified they cannot
be rejected. The voter cannot be punished. The remedy is by a criminal action
against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582;
section 2632, Act No. 2657; section 2639, Act No. 2711.)
Said section (2632) provides, among other things, that any member of a board of
registration, or board of inspectors, or board of canvassers who willfully declines or
fails to perform any duty or obligation imposed by the Election Law, shall be pun-
ished by imprisonment for not less than one month nor more than one year, or by
a fine of not less than P200 nor more than P500 or both.
With reference to the third question above indicated, relating to what is the effect
of a failure on the part of the authorities to provide proper voting booths, it may be
said that we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that
the requirements of the Election Law providing for the location of polling stations
and the construction of booths and guard rails for the latter may be departed from
in some particulars and yet preserve, in substantial form, the secrecy which the law
requires. But the failure to provide doors and guard rails for the booths and the
placing of the writing shelf so that it faces the side instead of the rear of the booths
are, combined, a fatal disregard of the law, inasmuch as such an arrangement does
not offer, even in substantial form, the secrecy and seclusion which, according to
the purpose and spirit of the Election Law, is its most mandatory requirement.
Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section
415 of Act 2711, provides that there shall be in each polling place, during each
election, a sufficient number of voting booths, not less than one for every fifty voters,
in the election precinct. Said section further provides how such voting booths, not
less than one every fifty voters, in the election precinct. Said section further provides
how such voting booths shall be constructed. The purpose of said provisions is to
furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board
of inspectors does not prepare the voting booth in exactly the form prescribed by
law, what shall be the effect? Support, the example, that they construct a booth less
than one meter square as is provided by the law but yet sufficiently large to enable
the voter to enter and to prepare his ballot in secrecy; or suppose that the door
swinging outward to the booth shall extend to the floor instead of within fifty centi-
meters of the floor; or suppose that the shelf upon which the voter shall prepare his
ballot shall be less than thirty centimeters wide, shall the entire election be declared
null and void for such failures when it is admitted and proved, beyond question, that
even with such defects in the fulfillment of the requirements of the election law they
were in fact constructed in a manner which provided the voter a complete oppor-
tunity to prepare his ballot in absolute secrecy? While there is no provision in the
law, relating to the construction of booths, they shall be constructed in such manner
as to afford the voter an opportunity to prepare his ballot in secret, that must be the
primary and ultimate object of having the booths constructed in the manner indi-
cated.
When we held that the law requiring the preparation of the booths in a particular
manner was mandatory, we did not mean to hold that unless they were prepared in
exact conformity with the law, that the election would be nullified. We simply held
that if they were not constructed in a manner which afforded the voters an oppor-
tunity to prepare their ballots in secret, the election would be declared null and void
on that account. If, however, upon the other hand, the booths were so constructed,
even though not in strict accord with the provisions of the law, as to afford each
voter an opportunity to prepare his ballot in secret, the election should not be de-
clared null and void. Secrecy is the object of the booth. An opportunity to prepare
his ballot in private is the purpose of the provision. When the booth affords that
protection, the purpose of the law is fulfilled. To hold otherwise — to establish a
different rule — would make the manner of performing a public duty more important
than the performance of the duty itself.
In the present case, while there is some conflict in the evidence, and while the proof
clearly shows that the booths were not constructed in strict accordance with the
provisions of the law, we are of the opinion that a large preponderance of the evi-
dence shows that the booths were constructed (defectively perhaps) in a manner
which afforded each voter an opportunity to prepare his ballot in absolute secrecy.
That being true, we find no reason for changing or modifying the conclusion of the
lower court.
The defendant-appellant alleges, and attempts to establish the fact, that in the mu-
nicipality of San Felipe Nery many irregularities were committed which should inval-
idate the election. For example, he alleges the different columns of the polling list
were not properly filled. Even granting that fact, the voter was in no way responsible.
The voter not being responsible, his ballot should not be nullified on that account.
Filling the different columns of the polling list is a duty imposed upon the election
officers. If they fail to perform their duty they are responsible; and as we have
frequently said, the ballots of innocent voters should not be nullified for a failure on
the part of election officers to perform their duty in accordance with the provisions
of the law. The remedy is a criminal action against the inspectors if they have vio-
lated the law and not to nullify the votes of innocent voters.
The defendant-appellant further alleges that in the municipality of San Felipe Nery,
a number of voters voted who were not residents of said municipality. That question
was presented to the court below, and upon a full consideration he refused to nullify
the election in said municipality upon the grounds alleged. While it is true that the
proof shows that some grave irregularities were committed by the board of inspec-
tors, we are not persuaded that the evidence is sufficient to justify this court in
nullifying the entire vote of said municipality. In view of that conclusion, we deem it
unnecessary to discuss the other allegations of the defendant-appellant with refer-
ence to the striking out of certain allegations in his answer.
The lower court, after hearing the evidence and after examining the ballots cast in
the municipality of Taytay, found that 50 ballots which had been counted for the
defendant-appellant should not be counted for him and ordered that the total vote
of the defendant-appellant should be reduced by that number. The defendant-ap-
pellant in fact admits that the said 50 votes should be deducted from his total vote.
In view of that admission of the defendant-appellant, we deem it unnecessary to
discuss the reasons therefor.
Upon the various errors assigned, our conclusions are:
(1) That the total votes cast in the municipality of Binangonan should be counted
for the respective candidates; that for the special reason given, the board of inspec-
tors was justified in keeping the polls open after the hour for closing. But this con-
clusion must not be interpreted to mean that under other circumstances and other
conditions, where the polls are kept open after the hour for fraudulent purposes,
that such act on the part of the inspectors might not nullify the entire election (Gar-
diner vs. Romulo, 26 Phil. Rep., 521);
(2) That while it is irregular for the board of inspectors to permit incapacitated voters
to vote without taking the oath and for one inspector only to assist such voters, yet
the ballots of the innocent voters should not be nullified on that account; that the
ballots of such persons only should be annulled when identified;
(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared
in a manner and form which permitted the voter to prepare his ballot in absolute
secrecy, the vote of that municipality should not be nullified; and
(4) That the judgment of the lower court reducing the total vote of the defendant-
appellant by fifty identified fraudulent ballots counted for him, in the municipality of
Taytay, should be affirmed.
As a result of the count of the ballots, cast in the various municipalities by the pro-
vincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna
received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando
de los Angeles did not protest the election. From all of the foregoing, the total votes
of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only,
or a clear majority of 114 votes.
Therefore, with the modification herein indicated, the judgment of the lower court
is affirmed as modified, and it is hereby ordered and decreed that the record be
immediately returned to the lower court with direction that a judgment be entered
directing and ordering the provincial board of inspectors to amend its count accord-
ingly.
It is so ordered, without any finding as to costs.
 vs.
EL JUEZ DEL JUZGADO DEL PRIMERA INSTANCIA DE BATAAN, recurrido.
Sres. Hernandez y Laquian en representacion del recurrrente.
El Juez recurrido en su propia representacion.
PABLO, J.:
El recurrente es acusado en la causa criminal No. 4307 del Juzgado de Primera Ins-
tancia de Bataan por el delito de asesinato. En mayo 20, 1946 fue informado de la
querella y se declaro no culpable. Los testigos, segun aquella, eran Wenceslao Cruz,
Conrado Manalac y otros.
En junio 6, dia designado para la vista, el Fiscal Provincial en vez de aducir sus
pruebas presento una querella enmendada incluyendo como acusados a los testigos
nombrados en la querella, Wenceslao Cruz y conrado Mañalac. En esta segunda
querella se alego que entre el recurrente y sus dos co-acusados hubo conspiracion,
confederacion y ayuda mutua cometer el delito. Admitida por el juzgado la querella
en cuanto a los acusados Conrado Manalac y Wenceslao Cruz para ser utilizados
como testigos de la acusacion, alegando las cinco condiciones que require el articulo
9, Regla 115. A esta peticion accedio el Juez en su orden de 6 de junio de 1946.
En junio 14 el recurrente presento el aviso de apelacion contra dicha orden, y fue
denegada el 19 del mismo mes.
En junio 26 el recurrente presento una mocion de reconsideracion que fue denegada
en 11 de julio.
Alegando estos hechos, el recurrente presento su peticion original de certiorari pi-
diendo que sean anuladas por este Tribunal las ordenes de 6 de junio y 11 de Julio
de 1946 del Juzgado de Primera Instancia de Bataan.
El recurrente alega que si no se diese curso a su citada apelacion se causaria irre-
parable dano a sus derechos sustanciales porque no tiene otro remedio facil, sencillo
y adecuado. En caso de condena, el acusado puede apelar y en el juzgado ad quem
puede discutir todos los errores cometidos por el juzgado inferior. Es el remedio
ordinario que concede la legislacion vigente.
EN BANC El recurrente alega que la orden del juez de 11 de julio denegando la mocion de
G.R. No. L-781 November 29, 1946 reconsideracion es nula y de ningun valor porque dicho juez obro sin jurisdiccion,
CEFERINO M. REGALA, recurrente, pues su nombramiento no ha sido aprobado por la Comision de Nombramientos,
segun publico un periodico de la misma fecha. No consta en autos que el juez haya
tenido conocimiento de tal desaprobacion antes de dictar su orden, impugnada de
ilegal. Un juez que desempana su cargo antes de enterarse de la desaprobacion de
su nombramiento es un juez de facto. Todas sus actuaciones oficiales, como juez de
facto, son tan validas para todos los fines legales y para toda clase de asuntos, como
las de un juez dejure. (Tayko contra Capistrano, 53 Jur. Fil., 923.)
El recurrente y los disidentes arguyen que el juez, al permitir la inclusion de dos
acusados y la adicion de las palabras: "by conspiring, confederating and helping one
another" en la querella enmendada, abuso de su discrecion con infraccion del ar-
ticulo 13, Regla 106 porque que esa enmienda sea tal. En la primera querella se
acusa al recurrente de autor y en la enmemdada decoautor, pero su responsabilidad
es la misma en ambas. El cambio solo se refiere a la forma de ejecucion del delito;
pero no a la substancia del delito mismo. La forma de ejecucion es mas bien materia
de pruebas y no de alegaciones, y los detalles alegados en la querella enmendada
pudieron haberse probado bajo la querella original.
Los solicitantes en este expendiente de certiorari, acusados en una querella por ase-
sinato, alegan que el juzgado se excedio de su jurisdiccion y abuso de ella al permitir
la enmienda de la querella. En la querella original se algaba que Bruno Arevalo iba
armado de cortaplumas y Cecilio Arevalo de revolver. En el querella enmendada,
que fue admitada, se alega que Bruno Arevalo era el que llevaba el revolver y Cecilio
Arevalo el cortaplumas.
En nuestra opinion, el juzgado no abuso de su discrecion. La enmienda de la querella
era meramente de forma. No afecta ni altera la naturaleza del delito,pues, sea Bruno
o Cecilio ell que haya causado la herida mortal, el delito serial el mismo. Tampoco
afecta a la extension de la responsibilidad de los solicitantes, toda vez que, alegan-
dose en el querella que ambos acusados conspiraron y se ayudaron el uno al otro
para cometer el delito, serian responsables en la misma medida, sea una u otro el
que infirio la herida que produjo la muerte del occiso. Es, por tanto, una enmienda
puramente de forma que no altera sustancialmente la querella ni afecta a los dere-
chos de los acusados (Arevalo y Arevalo contra Nepomuceno, 63 Jur. Fil., 665.)
Ademas, si el juez actuo con infraccion o no del Reglamento fue a lo mas un error
de procedimiento, y no un abuso de discrecion, ni exceso o falta de jurisdiccion. Tal
error, si lo es en realidad, puede ser corregido en apelacion,despues de dictada
sentencia definitiva en primera instancia, y no en una accion de certiorari.
Solamente procede el remedio de certiorari cuando un tribunal, en el ejecucion de
sus funciones judiciales, haya actuado sin jurisdiccion o con exceso de ella o con
grave abuso de discrecion y que, en la tramitacion ordinaria, no tiene el recurrente
el remedio sencillo y expedito de apelacion (Regla 67, articulo 1). Si por cada error
cometido por un juzgado de certiorari, los asuntos serian interminables.
Se deniga la solicitud con las costas contra el recurrente.
Moran, Pres., Paras, Bengzon y Padilla, MM., estan conformes.
Separate Opinions
FERIA, J., concurring:
I concur in the result for the following reasons:
According to section 1, Rule 67, certiorari lies when a tribunal or officer exercising
judicial functions has acted without or in excess of its jurisdiction, or with grave
abuse of discretion, and there is no appeal nor any plain, speedy, and adequate
remedy in the ordinary course of law.
There is no doubt that appeal does not lie against an order of a court admitting or
denying the amendment of a complaint or information, because such order is inci-
dental or interlocutory and not final in character, that is, it does nor put an end to
the ordinary proceedings of the case in court. Interlocutory or incidental order may
be impugned as erroneous in the appellate court, when appeal is taken from the
judgment or order of the lower court which is final in character.
The question to determine, therefore, is whether or not the respondent judge acted
(a) without or in excess of the court's jurisdiction, or (b) with grave abuse of discre-
tion, in allowing the amendment of the information in this case.
(a) As to the first question, it is well known rule that a court having jurisdiction over
the offense charged and the territory wherein it was committed, has also jurisdiction
to decide all questions incidental to the criminal proceeding, such as the sufficiency
of a complaint or information, or whether the defendant has been previously con-
victed or in jeopardy of being convicted or acquitted of the offense charged, or is
insane. If the decision or resolution on such questions is not conformity with or
against the law, the court would commit an error, but not exceed its jurisdiction. A According to the above quoted provisions, after the discretion to allow the amend-
judge would act in excess of the court's jurisdiction if he performs or does an act ment of an information or complaint in matters of form, but not in matters of sub-
which he has no power or authority to do, in connection with the proceeding over stance. The court having no power to allow amendment in substance it could not
which the court has jurisdiction. But to decide erroneously a question which it is have discretion to allow it or not, and hence it could not have acted with grave abuse
within the court's jurisdiction to decide, is not acting beyond or in excess of its juris- of discretion, which the court did not have. Therefore, the respondent judge has not
diction. To hold otherwise would be to sustain the absurdity that a court acts within acted with grave abuse of discretion in admitting the amendment, even assuming
its jurisdiction if it decides a case in conformity with the law, and in excess of its that the amendment is of substance.
jurisdiction of its decision is erroneous or contrary to law. Wherefore, certiorari does not lie in the present case, and the petition is denied.
From the foregoing, it necessarily follows that the decision or order of the respond-
ent judge allowing the amendment of the information after the defendant petitioner
has pleaded would be erroneous if it is an amendment of substance and not of form,
but it would not be an act beyond or in excess of the court's jurisdiction, because
the court has power or jurisdiction to decide that question. The respondent judge
has not, therefore, acted without or in excess of the court's jurisdiction in allowing
the amendment of the information, however erroneous that resolution may be.
(b) With respect to the second, it goes without saying, for it is of common sense,
that if a person has no power to do an act, and therefore no discretion to do or not
to do it, it cannot be said that he has acted within, or with grave abuse of, his
discretion in doing or not doing it. No one may abuse a thing that he does not have.
If the respondent judge has no discretion to act in one way or another, as in the
present case, he could not have acted with grave abuse of discretion, for he can not
abuse a discretion which does not have.
Therefore the question is reduced to whether or not the court has power to allow
the amendment in substance of an information after the defendant has pleaded. If
it has no power to permit such amendment, it does have discretion to allow it or not
because discretion supposes power to do.
Section 13, Rule 106 of the Rules of Court, provides:
SEC. 13. Amendment. — the information or complaint may be amended, in sub-
stance or form, without leave of court, at any time before the defendant pleads; and
thereafter and during the trial as to all matters of form, by leave and at the discretion
of the court, when the same can be done without prejudice to the rights of the
defendant.
 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.
EN BANC In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated
G.R. No. 90762 May 20, 1991 that since B.P. 337 has no provision relating to succession in the Office of the Vice-
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, Governor in case of a temporary vacancy, the appointment of the petitioner as the
vs. temporary Vice- Governor is not necessary since the Vice-Governor who is tempo-
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief rarily performing the functions of the Governor, could concurrently assume the func-
Executive of the Province of Leyte and Head of SANGGUNIANG PANLALA- tions of both offices.
WIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. As a result of the foregoing communications between Tente U. Quintero and Jacinto
Zozimo G. Alegre for petitioner. T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7,
The Provincial Attorney for respondents. 1989, issued Resolution No. 505 where it held invalid the appointment of the peti-
RESOLUTION tioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution
reads:
GUTIERREZ, JR., J.:
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 Leo-
poldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of
office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance
of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar,
Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the
Honorable Rogelio L. Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon
as Acting Vice-Governor of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty.
Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. re-
garding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opin-
ion.1âwphi1 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 Govern-
ment in favor of one of the Sangguniang Panlalawigan Members of Leyte to tempo-
rarily 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. Further-
more, the necessity of designating an official to temporarily perform the functions
of a particular public office, would depend on the discretion of the appointing au-
thority and the prevailing circumstances in a given area and by taking into consider-
ation the best interest of public service.
On the basis of the foregoing and considering that the law is silent in case of tem-
porary 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 Panlala-
wigan be modified accordingly. The letter states:
In view thereof, please correct previous actions made by your office and those of
the Sangguniang Panlalawigan which may have tended to discredit the validity of
Atty. Aurelio Menzon's designation as acting vice-governor, including the payment
of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor
Petilla, reiterating his earlier request.
Despite these several letters of request, the Acting Governor and the Sangguniang
Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the
petitioner the emoluments attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition for
certiorari and mandamus. The petition sought the nullification of Resolution No. 505
and for the payment of his salary for his services as the acting Vice-Governor of
Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and
Adelina Larrazabal was proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provin-
cial 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 resolu-
tion requested Governor Larrazabal to direct the petitioner to pay back to the prov-
ince 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 res-
olution. The motion prayed that this Court uphold the petitioner's right to receive
the salary and emoluments attached to the office of the Vice-Governor while he was
acting as such.
The petitioner interposes the following reason for the allowance of the motion for
reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES
RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF
GOOD FAITH. SIMPLE JUSTICE AND EQUITY.
The controversy basically revolves around two issues: 1) Whether or not there was
a vacancy?; and 2) Whether or not the Secretary of Local Government has the au-
thority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-Gover-
nor which requires the appointment of the petitioner. They further allege that if
indeed there was a need to appoint an acting Vice-Governor, the power to appoint
is net vested in the Secretary of Local Government. Absent any provision in the Local
Government Code on the mode of succession in case of a temporary vacancy in the
Office of the Vice-Governor, they claim that this constitutes an internal problem of
the Sangguniang Panlalawigan and was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy whenever the
office is occupied by a legally qualified incumbent. A sensu contrario, there is a
vacancy when there is no person lawfully authorized to assume and exercise at pre-
sent 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 succes-
sion 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 Secre-
tary 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 ap-
pointment 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 afford-
ing any remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Gov-
ernment 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 Adminis-
trative 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 per-
manent 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 remu-
nerated 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 consider-
ations 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 addi-
tional 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.

EN BANC
G.R. No. 122197 June 26, 1998
ZOSIMO M. DIMAANDAL, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the Commission on
Audit dated September 7, 1995, the dispositive portion of which reads, to wit:
1 order or authorize payment of compensation to any government officer or employee
Foregoing premises considered, the instant appeal cannot be given due course. Ac-
cordingly, the disallowance in question in the total amount of P52,908.00 is hereby
affirmed. Considering that the claim for the RATA differential in the amount of
P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence, appellant
Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential
in the amount of P61,308.00 he had received from the Provincial Government of
Batangas. 2 The Provincial Auditor, however, denied the request for reconsideration. Appellant
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position
of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Ad-
ministration by then Governor Vicente A. Mayo of Batangas. Pursuant to the desig-
nation, petitioner filed a claim for the difference in salary and Representation and
Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Of-
ficer III for the whole year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What
was allowed was only the amount of P8,400.00 which corresponds to the difference
in the allowances attached to the designation and the position occupied by the ap-
pellant. The disallowances was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applica-
ble in the instant case as the power to fill the position of Assistant Provincial Treas-
urer rests on the Secretary of Finance.
2. The designation is temporary in nature and does not amount to the issuance of
an appointment as could entitle the designee to receive the salary of the position to
which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service
Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting re-
consideration of the subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant
case as the same provides that the Governor General or the officer having the power
to fill-up a temporary absence or disability in the provincial office has the power to
designated or appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial
Treasurer for Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer
for Administration was no longer performing the duties and functions of Supply Of-
ficer III.
was required to refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the
stand of the Provincial Auditor of Batangas as valid and proper. The respondent
Commission was of the view that the petitioner was merely designated as an Assis-
tant Provincial Treasurer for Administration in addition to his regular duties. As such,
he is not entitled to receive an additional salary. The Commission further opined that
petitioner was likewise not entitled to receive the difference in RATA provided for
under the Local Budget Circular issued by the Department of Budget and Manage-
ment considering that the party designating him to such position is not the "duly
competent authority," provided for under Section 471 of the Local Government Code.
Notably, petitioner was appointed as Assistant Provincial Treasurer for Administra-
tion by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount
of P52,908.00 but likewise disallowed the claim for the RATA differential in the
amount of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore,
directed to refund the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity
is entitled to the difference in salary between his regular position and the higher
position to which he is designated.
Petitioner avers that the respondent Commission's decision is "probably not in ac-
cordance with applicable decisions of the Supreme Court." 3 He cites the cases of
Cui, et. al. vs. Ortiz, et. al., 4 April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,
5 which laid down the rule that de facto officers are entitled to salary for services
actually rendered. Petitioner contends that he may be considered as a de facto of-
ficer by reason of services rendered in favor of the Province of Batangas. He then
posits the view that to disallow his compensation and in the process allow the Prov-
ince of Batangas to keep and enjoy the benefits derived from his services actually
rendered would be tantamount to deprivation of property without due process of
law, and impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor
General, maintains that decisions cited by petitioner do not find application in peti-
tioner's case. In the case of Menzon, what was extended was an appointment to the
vacant position of Vice-Governor. Here, what was extended to petitioner was not
appointment but a mere designation. Thus, the nature of petitioner's designation
and in the absence of authority of the Governor to authorize the payment of the
additional salary and RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make the ruling on de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioner's insistence that he could still claim the salary
and RATA differential because he actually performed the functions pertaining to the
office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary
and benefits attached to it despite the fact that the Governor of Batangas had no
authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Gov-
ernment Code which mandates that:
Sec. 471. Assistant Treasurers. — (a) An Assistant treasurer may be appointed by
the Secretary of Finance from a list of at least three (3) ranking eligible recommen-
dees of the governor or mayor, subject to civil service law, rules and regulations.
xxx xxx xxx
In fact, the appointing officer is authorized by law to order the payment of compen-
sation to any government officer or employee designated or appointed to fill such
vacant position, as provided under Section 2077 of the Revised Administrative Code
which states that:
Sec. 2077. Compensation for person appointed to temporary service.
xxx xxx xxx
In case of the temporary absence or disability of a provincial officer or in case of a
vacancy in a provincial office, the President of the Philippines or officer having the
power to fill such position may, in his discretion, order the payment of compensation,
or additional compensation, to any Government officer or employee designated or
appointed temporarily to fill the place, but the total compensation paid shall not
exceed the salary authorized by law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint
nor even designate one temporarily in cases of temporary absence or disability or a
vacancy in a provincial office. That power resides in the President of the Philippines
or the Secretary of Finance.
Necessarily, petitioner's designation as Assistant Provincial Treasurer for Administra-
tion by Governor Mayo Being defective, confers no right on the part of petitioner to
claim the difference in the salaries and allowances attached to the position occupied
by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a desig-
nation not an appointment. The respondent Commission clearly pointed out the dif-
ference between an appointment and designation, thus:
There is a great difference between an appointment and designation. While an ap-
pointment is the selection by the proper authority of an individual who is to exercise
the powers and functions of a given office, designation merely connotes an imposi-
tion of additional duties, usually by law, upon a person already in the public service
by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is mere imposition of new or additional duties on the officer or employee
to be performed by him in a special manner. It does not entail payment of additional
benefits or grant upon the person so designated the right to claim the salary at-
tached to the position (COA Decision NO. 95-087 dated February 2, 1995). As such,
there being no appointment issued, designation does not entitle the officer desig-
nated to receive the salary of the position. For the legal basis of an employee's right
to claim the attached thereto is a duly issued and approved appointment to the
position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service
Commission, Re: Evora, Carlos, A. Jr., Designation). 6 officer is entitled to receive the salary for services actually rendered. However, his
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given
by the agency or entity charged with the enforcement of a statute should be given
great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such con-
struction, as in the case at bar, has been uniform, and consistent, and has been
observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167;
Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs,
51 Phil.
143). 7 the alter ego of the President, The Secretary of Local Government, after which he
We see no justifiable reason to sustain petitioner's argument that non-payment of
his salary differential and RATA would be a violation of his constitutional right against
deprivation of property without due process of law and the non-impairment of obli-
gation of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assump-
tion that the appointment or designation thereof was made in accordance with law.
Considering that petitioner's designation was without color of authority, the right to
the salary or an allowance due from said office never existed. Stated differently, in
the absence of such right, there can be no violation of any constitutional right nor
an impairment of the obligation of contracts clause under the Constitution.
The nature of petitioner's designation and the absence of authority of the Governor
to authorize the payment of the additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and whose ap-
pointment is valid on its face. It is likewise defined as one who is in possession of
an office, and is discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so that the
incumbent be not a mere volunteer. 8 Then a de facto officer is one who is in pos-
session of an office in the open exercise of its functions under color of an election
or an appointment, even though such election or appointment may be irregular. 9
Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de facto
reliance on the Menzon case is misplaced. In Menzon, what was extended was an
appointment to the vacant position of Vice-Governor, in petitioner's case, he was
designated. The appointment of Menzon had the color of validity. This Court said:
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 a color of a known ap-
pointment. As revealed by the records, the petitioner was appointed by no less than
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.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al. 11 does not apply in petitioner's
case. In Cui, this Court held:
Petitioners' appointment on December 1 and 12, 1955 by the then mayor of the
municipality were legal and in order, the appointing mayor still in possession of his
right to appoint. For such appointment to be complete, the approval of the President
of the Philippines is required. The law provides that pending approval of said ap-
pointment by the President, the appointee may assume office and receive salary for
services actually rendered. Accordingly, therefore, in that duration until the appoint-
ment is finally acted upon favorably or unfavorably, the appointees may be consid-
ered as "de facto" officers and entitled to salaries for services actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is
dated July 8, 1994. Petitioner's claim that the appointment retro-acts to his assump-
tion of office is not confirmed by the express phraseology of the appointment itself,
which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION
na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF
BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED
TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng
tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing
authority. 12

The subsequent appointment of petitioner to the position on July 8, 1994, cannot

justify petitioner's retention of the excess amount of P61,308.00, which corresponds
to the amount disallowed and ordered refunded by COA representing the salary and
RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of
merit.
SO ORDERED.

Cui, et al. vs Ortiz, 107 Phil. 1000
PARAS, C.J.:
The present appeal originated from a petition for a writ of mandamus to compel
respondent mayor to sign the payroll and approve the salaries accruing to petition-
ers, and to reinstate petitioners to their former positions.
Petitioners were civil service eligibles appointed by the then Mayor of Ronda, Cebu,
Fortunato Villalon, on December 1 and 12, 1955, petitioner Maribao as Chief of Po-
lice, and petitioners Cui, Yusores and Beynosa as patrolmen of the said municipality.
On January 16, 1956, the newly elected mayor, above respondent, served notice to
petitioners advising them of the termination of their service. In that very month,
respondent appointed a new Chief of Police and three new policemen to take the
place of petitioners. He also sent a telegram to the President of the Philippines with-
drawing the appointments of petitioners. Petitioners after said date of January 16,
1956, continued in the service by reporting to the PC detachment at Damangug,
Cebu.
The trial court rendered judgment ordering the incumbent mayor, respondent, to
approve the payment of petitioners' salaries from January 16, 1956 to July 18, 1956,
but kept silent as to the reinstatement, which the court evidently did not deem
proper.
Both petitioners and respondents appealed from the aforesaid decision, petitioners
insisting in their reinstatement and accrued salaries until reinstatement; respondents
assigning as error the payment of salaries from January 16 to July 18, 1956.
Section 14, Ex. Order No. 175 series of 1938 governs the appointments to the police
force of the municipality. It says:
"14. Hereafter, appointments to and promotion in the municipal, city and provincial
police service shall be made in accordance with Civil Service Rules and Regulations
by the respective city or municipal mayor or governor, with the approval of the
President of the Philippines pending" designation of the Department Head who is to
exercise supervision over local police force, except in cases of Chief of Police of
Chartered cities which is governed by special provisions of law. The selection of
appointees shall be made whenever possible from the list of eligibles in the corre-
sponding city or municipality, if there are any, and in the negative ease, from the
general list of eligibles in the province. Pending approval of the appointment by the
President, the appointee may assume office and receive salary for services actually
rendered until the appointment is finally acted upon."
Petitioners' appointments on December 1 and 12, 1955 by the then mayor of the
municipality were legal and in order, the appointing power still in possession of his
right to appoint. For such appointments to be complete, the approval of the Presi-
dent of the Philippines is required. The law provides that pending approval of said
appointment by the President, the appointee may assume office and receive salary
for services actually rendered. Accordingly therefore, in that duration until the ap-
pointment is finally acted upon favorably or unfavorably, the appointees may be
considered as "de facto" officers and entitled to salaries for services actually ren-
dered.
Petitioners' appointments when respondent took office were not complete. Their
recall and withdrawal having been based on lack of residence in the municipality
concerned is proper. Respondent cannot be charged with discriminate removal of
petitioners in view of their incomplete appointment to the office.
It is of record that the office of the President disapproved petitioner Maribao's ap-
pointment on July 18, 1956. It is in fact liberal construction for this Court (as for the
lower court) to consider said date of July 18, 1956 as the final disapproval of ap-
pointments of the other petitioners.
Wherefore, the decision appealed from is hereby affirmed without costs,. So or-
dered.

G.R. No. 103903. September 11, 1992.
MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON,
petitioners, vs. RAUL A. DAZA, HON. CAMILO SABIO, as Secretary of the
House of Representatives, MR. JOSE MARIA TUANO, as Officer-in-Charge,
Gen. Services Division of the House of Representatives, MRS. ROSALINDA
G. MEDINA, as Chief Accountant of the House of Representatives, and the
HON. COMMISSION ON AUDIT, respondents.
Election Law; Candidates; Qualifications; Jurisdiction.—xxx. [J]urisdiction of this
case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article
VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns and qualification of its members.
Since petitioners challenge the qualifications of Congressman Daza, the appropriate
remedy should have been to file a petition to cancel respondent Daza’s certificate of
candidacy before the election or a quo warranto case with the House Electoral Tri-
bunal within ten (10) days after Daza’s proclamation.
Public Officers; Validity of acts of de facto officers.—xxx. [A]s a de facto public of-
ficer, respondent cannot be made to reimburse funds disbursed during his term of
office because his acts are as valid as those of a de jure officer. Moreover, as a de
facto officer, he is entitled to emoluments for actual services rendered.
PETITION for prohibition to review the decision of the Commission on Audit.
The facts are stated in the resolution of the Court. Luis H. Dado for petitioners.
Sevilla, Hechanova, Ballicud & Associates for respondent Raul Daza.
R E S O L U T IO N
ROMERO, J.:
Sampayan vs. Daza
On February 18, 1992, petitioners, residents of the second Congressional District of
Northern Samar filed the instant petition for prohibition seeking to disqualify re-
spondent Raul Daza, then incumbent congressman of the same congressional dis-
trict, from continuing to exercise the functions of his office, on the ground that the
latter is a greencard holder and a lawful permanent resident of the United States
since October 16, 1974.
Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his
status as permanent resident, thereby violating Section 68 of Batas Pambansa Bilang
881 (Omnibus Election Code) and Section 18, Article XI of the 1987 Constitution.
On February 25, 1992, we required respondents to comment. On March 13, 1992,
respondents, through the Solicitor General, filed a motion for extension of time to
file their comment for a period of thirty days or until April 12, 1992. Reacting to the
said motion, petitioners on March 30, 1992, manifested their opposition to the 30-
day extension of time stating that such extension was excessive and prayed that
respondent instead be granted only 10 days to file their comment. On May 5, 1992,
the Court noted the manifestation and opposition.
On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a
petition before the COMELEC to disqualify respondent Daza from running in the re-
cent May 11, 1992 elections on the basis of Section 68 of the Omnibus Election Code
(SPC 92- 084) and that the instant petition is concerned with the unlawful assump-
tion of office by respondent Daza from June 30, 1987 until June 30, 1992.
1
On April 10, 1992, respondent Congressman Daza filed his comment denying the
fact that he is a permanent resident of the United States; that although he was
accorded a permanent residency status on October 8, 1980 as evidenced by a letter
order of the District Director, US Immigration and Naturalization Service, Los Ange- holder, petitioners presented to us a letter from the United States Department of
les, U.S.A., he had long waived his status when he returned to the Philippines on Justice, Immigration and Naturalization Service
August 12, 1985.
On April 13, 1992, public respondent Camilo Sabio, Secretary (INS) which reads:

General of the House of Representatives, Mr. Jose Mari Tuaño, as OIC of the General Geraghty, O’Loughlin and Kenney Attn: David C. Hutchinson
Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of 386 N. Wasbasha Street
Representatives and Commission on Audit, filed their comment. They contend that St. Paul, Minn. 55102-1308 SUBJECT:
if indeed Congressman Daza is a greencard holder and a permanent resident of the
United States of America, then he should be removed from his position as Congress- File No. A20 968 618 Date: Nov. 5, 1991

man. However, they opined that only Congressman Daza can best explain his true
and correct status as a greencard holder. Until he files his comment to the petition,
petitioners’ prayer for temporary restraining order and/or writ of preliminary injunc-
tion should not be granted. Eight (8) days later, respondent Daza, reacting to the
petition before the COMELEC (SPC 92-084) and hypothesizing that the case before
the COMELEC would become moot should this Court find that his permanent resident
status ceased when he was granted a US non-immigrant visa, asked this Court to
direct the COMELEC to dismiss SPC No. 92-084. On May 5, 1992, petitioners filed
their reply. On May 21, 1992, this Court gave due course to the petition and required
the parties to file their respective memoranda. The central issue to be resolved in
this case is whether or not respondent Daza should be disqualified as a member of
the House of Representatives for violation of Section 68 of the Omnibus Election
Code.
Petitioners insist that Congressman Daza should be disqualified from exercising the
functions of his office being a permanent resident alien of the United States at the
time when he filed his certificate of candidacy for the May 11, 1987 Elections. To
buttress their contention, petitioners cite the recent case of
Caasi v. Court of Appeals.
In support of their charge that respondent Daza is a greencard
LOS914732
Daza, Raul A. Your request was received in this office on ________________; please
note the paragraph(s) checked below:
xxx xxx xxx
10. [XX] Other remarks:
Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful
Permanent Resident on Oct. 16, 1974. As far as we know subject (sic) still has his
greencard. No he has not applied for citizenship. Sinerely, (sic) Sgd. District Director
Form G-343 (Rev. 8-20-82)N
We vote to dismiss the instant prohibition case. First, this case is already moot and
academic for it is evident from the manifestation
filed by petitioners dated April 6, 1992 that they seek to unseat respondent from his
position as Congressman for the duration of his term of office commencing June 30,
1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains
to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitu-
tion, it is the House Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns and qualification of its members. Since petitioners
challenge the qualifications of Congressman Daza, the appropriate remedy should
have been to file a petition to cancel respondent Daza’s certificate of candidacy be-
fore the election or a quo warranto case with the House Electoral Tribunal within ten
(10) days after Daza’s proclamation. Third, a writ of prohibition can no longer be
issued against respondent since his term has already expired. A writ of prohibition
is not intended to provide for acts already consummated. Fourth, as a de facto public
officer, respondent cannot be made to reimburse funds disbursed during his term of
office because his acts are as valid as those of a de jure officer. Moreover, as a de
facto officer, he is entitled to emoluments for actual services rendered. ACCORD-
INGLY, the Court Resolved to DISMISS the instant petition for being MOOT and
ACADEMIC. SO ORDERED.

Narvasa (C.J.), Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon
and Bellosillo, JJ., concur.

Gutierrez, Jr., Cruz and Feliciano, JJ., On official leave. Melo and Campos, Jr., JJ.,
No part.

Petition dismissed.

Note.—Respondent’s immigration to the United States in 1984 constituted an aban-

donment of his domicile and residence in the Philippines (Caasi vs. Court of Appeals,
191 SCRA 229).

EN BANC
G.R. No. 193237 October 9, 2012
DOMINADOR G. JALOSJOS, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x-----------------------x
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,
vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respond-
ents.
DECISION
CARPIO, J.:
These are two special civil actions for certiorari1 questioning the resolutions of the
Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237,
Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution2 of
the COMELEC First Division and the 11 August 2010 Resolution3 of the COMELEC
En Banc, which both ordered the cancellation of his certificate of candidacy on the
ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Car-
dino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which
applied the rule on succession under the Local Government Code in filling the va-
cancy in the Office of the Mayor of Dapitan City, Zamboanga del Norte created by
the cancellation of Jalosjos’ certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga
del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino
filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code
to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino
asserted that Jalosjos made a false material representation in his certificate of can-
didacy when he declared under oath that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos
had already been convicted by final judgment for robbery and sentenced to prisión
mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case
No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sen-
tence. Jalosjos admitted his conviction but stated that he had already been granted
probation. Cardino countered that the RTC revoked Jalosjos’ probation in an Order
dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an
Order dated 5 February 2004 declaring that Jalosjos had duly complied with the or-
der of probation. Jalosjos further stated that during the 2004 elections the COMELEC
denied a petition for disqualification filed against him on the same grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as
follows:
As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery
on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of
the then Circuit Criminal Court of Cebu City found him and his co-accused guilty of
robbery and sentenced them to suffer the penalty of prision correccional minimum
to prision mayor maximum. Jalosjos appealed this decision to the Court of Appeals
but his appeal was dismissed on August 9, 1973. It was only after a lapse of several
years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation
before the RTC Branch 18 of Cebu City which was granted by the court. But then,
on motion filed by his Probation Officer, Jalosjos’ probation was revoked by the RTC
Cebu City on March 19, 1987 and the corresponding warrant for his arrest was is-
sued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gre-
gorio F. Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had
already fulfilled the terms and conditions of his probation. This Certification was the
one used by respondent Jalosjos to secure the dismissal of the disqualification case
filed against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the
Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod, former Ad-
ministrator of the Parole and Probation Administration, guilty of violating Section 3(e)
of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to
the fact that respondent Jalosjos had fully complied with the terms and conditions of
his probation. A portion of the decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer Dominador
Jalosjos, Jr., unwarranted benefits and advantage because the subject certification,
which was issued by the accused without adequate or official support, was subse-
quently utilized by the said probationer as basis of the Urgent Motion for Reconsid-
eration and to Lift Warrant of Arrest that he filed with the Regional Trial Court of Cebu
City, which prompted the said court to issue the Order dated February 5, 2004 in
Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied
with the order of probation and setting aside its Order of January 16, 2004 recalling
the warrant or [sic] arrest; and that said Certification was also used by the said pro-
bationer and became the basis for the Commission on Elections to deny in its Res-
olution of August 2, 2004 the petition or [sic] private complainant James Adasa for
the disqualification of the probationer from running for re-election as Mayor of Dapi-
tan City in the National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted Cardino’s petition and can-
celled Jalosjos’ certificate of candidacy. The COMELEC First Division concluded that
"Jalosjos has indeed committed material misrepresentation in his certificate of can-
didacy when he declared, under oath, that he is eligible for the office he seeks to be
elected to when in fact he is not by reason of a final judgment in a criminal case, the
sentence of which he has not yet served."6 The COMELEC First Division found that
Jalosjos’ certificate of compliance of probation was fraudulently issued; thus,
Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the
indeterminate sentence of one year, eight months and twenty days of prisión correc-
cional as minimum, to four years, two months and one day of prisión mayor as max-
imum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of
his disqualification as provided for in Section 40(a) of Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsid-
eration. The pertinent portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier probation and a clear showing that he
has not yet served the terms of his sentence, there is simply no basis for Jalosjos to
claim that his civil as well as political rights have been violated. Having been con-
victed by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office. His
proclamation as the elected mayor in the May 10, 2010 election does not deprive the
Commission of its authority to resolve the present petition to its finality, and to oust
him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for
utter lack of merit. Jalosjos is hereby OUSTED from office and ordered to CEASE
and DESIST from occupying and discharging the functions of the Office of the Mayor
of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on
succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while
Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DIS-
MISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August
11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby
AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial
notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsidera-
tion10 on 22 March 2011. On 29 March 2011, this Court resolved11 to consolidate
G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June
2012 which stated that "he has resigned from the position of Mayor of the City of
Dapitan effective 30 April 2012, which resignation was accepted by the Provincial
Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation
was made "in deference with the provision of the Omnibus Election Code in relation
to his candidacy as Provincial Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’
Motion for Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No.
193536, we address not only Jalosjos’ eligibility to run for public office and the con-
sequences of the cancellation of his certificate of candidacy, but also COMELEC’s
constitutional duty to enforce and administer all laws relating to the conduct of elec-
tions.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’
probation was revoked; (2) ruled that Jalosjos was disqualified to run as candidate
for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’ certifi-
cate of candidacy without making a finding that Jalosjos committed a deliberate mis-
representation as to his qualifications, as Jalosjos relied in good faith upon a previ-
ous COMELEC decision declaring him eligible for the same position from which he
is now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August
2010 were issued in violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it added to the dispositive
portion of its 11 August 2010 Resolution that the provisions of the Local Government
Code on succession should apply.
This Court’s Ruling
The perpetual special disqualification against Jalosjos arising from his criminal con-
viction by final judgment is a material fact involving eligibility which is a proper ground
for a petition under Section 78 of the Omnibus Election Code. Jalosjos’ certificate of
candidacy was void from the start since he was not eligible to run for any public office
at the time he filed his certificate of candidacy. Jalosjos was never a candidate at
any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certifi-
cate of candidacy being void ab initio, Cardino, as the only qualified candidate, ac-
tually garnered the highest number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution of the
COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En
Banc. The dissenting opinions erroneously limit the remedy against Jalosjos to dis-
qualification under Section 68 of the Omnibus Election Code and apply the rule on
succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to run for
public office is a false material representation which is a ground for a petition under
Section 78 of the same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall
state that the person filing it is announcing his candidacy for the office stated therein
and that he is eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or district or sector
which he seeks to represent; the political party to which he belongs; civil status; his
date of birth; residence; his post office address for all election purposes; his profes-
sion or occupation; that he will support and defend the Constitution of the Philippines
and will maintain true faith and allegiance thereto; that he will obey the laws, legal
orders, and decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation imposed by
his oath is assumed voluntarily, without mental reservation or purpose of evasion;
and that the facts stated in the certificate of candidacy are true to the best of his
knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by the person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the cer-
tificate of candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of candidacy
"that he is eligible for said office." A candidate is eligible if he has a right to run for
the public office.14 If a candidate is not actually eligible because he is barred by final
judgment in a criminal case from running for public office, and he still states under
oath in his certificate of candidacy that he is eligible to run for public office, then the
candidate clearly makes a false material representation that is a ground for a petition
under Section 78.
A sentence of prisión mayor by final judgment is a ground for disqualification under
Section 40 of the Local Government Code and under Section 12 of the Omnibus
Election Code. It is also a material fact involving the eligibility of a candidate under
Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition
under Section 40 of the Local Government Code or under either Section 12 or Sec-
tion 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Re-
public;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code;
and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been declared by competent au-
thority insane or incompetent, or has been sentenced by final judgment for subver-
sion, insurrection, rebellion or for any offense for which he was sentenced to a pen-
alty of more than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given ple-
nary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed
upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he
is a party is declared by final decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b) com-
mitted acts of terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent resident or immigrant
of a foreign country in accordance with the residence requirement provided for in the
election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the penalties of
prisión mayor and temporary disqualification shall be from six years and one day to
twelve years, except when the penalty of disqualification is imposed as an accessory
penalty, in which case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification.
— The penalties of perpetual or temporary absolute disqualification for public office
shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may
have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office
or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of
any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in para-
graphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. —
The penalties of perpetual or temporary special disqualification for public office, pro-
fession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually
or during the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for
the exercise of the right of suffrage. — The perpetual or temporary special disquali-
fication for the exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during
the period of his disqualification.
Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor
shall carry with it that of temporary absolute disqualification and that of perpetual
special disqualification from the right of suffrage which the offender shall suffer alt-
hough pardoned as to the principal penalty, unless the same shall have been ex-
pressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,15 the
accessory penalties of temporary absolute disqualification and perpetual special dis-
qualification. Under Article 30 of the Revised Penal Code, temporary absolute dis-
qualification produces the effect of "deprivation of the right to vote in any election for
any popular elective office or to be elected to such office." The duration of the tem-
porary absolute disqualification is the same as that of the principal penalty. On the
other hand, under Article 32 of the Revised Penal Code perpetual special disqualifi-
cation means that "the offender shall not be permitted to hold any public office during
the period of his disqualification," which is perpetually. Both temporary absolute dis-
qualification and perpetual special disqualification constitute ineligibilities to hold
elective public office. A person suffering from these ineligibilities is ineligible to run
for elective public office, and commits a false material representation if he states in
his certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the
import of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that ap-
pellee’s conviction of a crime penalized with prisión mayor which carried the acces-
sory penalties of temporary absolute disqualification and perpetual special disquali-
fication from the right of suffrage (Article 42, Revised Penal Code); and Section 99
of the Revised Election Code disqualifies a person from voting if he had been sen-
tenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict
for public office and for the right to vote, such disqualification to last only during the
term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code)
that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual
special disqualification for the exercise of the right of suffrage. This accessory pen-
alty deprives the convict of the right to vote or to be elected to or hold public office
perpetually, as distinguished from temporary special disqualification, which lasts dur-
ing the term of the sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for
the exercise of the right of suffrage. — The perpetual or temporary special disquali-
fication for the exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during
the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be
applied distributively to their respective antecedents; thus, the word "perpetually"
refers to the perpetual kind of special disqualification, while the phrase "during the
term of the sentence" refers to the temporary special disqualification. The duration
between the perpetual and the temporary (both special) are necessarily different be-
cause the provision, instead of merging their durations into one period, states that
such duration is "according to the nature of said penalty" — which means according
to whether the penalty is the perpetual or the temporary special disqualification. (Em-
phasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualifi-
cation "deprives the convict of the right to vote or to be elected to or hold public office
perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately
once the judgment of conviction becomes final. The effectivity of this accessory pen-
alty does not depend on the duration of the principal penalty, or on whether the con-
vict serves his jail sentence or not. The last sentence of Article 32 states that "the
offender shall not be permitted to hold any public office during the period of his per-
petual special disqualification." Once the judgment of conviction becomes final, it is
immediately executory. Any public office that the convict may be holding at the time
of his conviction becomes vacant upon finality of the judgment, and the convict be-
comes ineligible to run for any elective public office perpetually. In the case of
Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public
office from the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the
Omnibus Election Code because this accessory penalty is an ineligibility, which
means that the convict is not eligible to run for public office, contrary to the statement
that Section 74 requires him to state under oath. As used in Section 74, the word
"eligible" means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for public office. As this Court held
in Fermin v. Commission on Elections,17 the false material representation may refer
to "qualifications or eligibility." One who suffers from perpetual special disqualifica-
tion is ineligible to run for public office. If a person suffering from perpetual special
disqualification files a certificate of candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required under Section 74, then he clearly
makes a false material representation that is a ground for a petition under Section
78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC
is not based on the lack of qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the qualifications required
of the public office he/she is running for. It is noted that the candidate states in his/her
CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, there-
fore, is to be read in relation to the constitutional and statutory provisions on qualifi-
cations or eligibility for public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC, following the law, is empow-
ered to deny due course to or cancel such certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or qualification of a candidate,
with the distinction mainly in the fact that a "Section 78" petition is filed before proc-
lamation, while a petition for quo warranto is filed after proclamation of the winning
candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisión mayor, to which
perpetual special disqualification attaches by operation of law, is not a ground for a
petition under Section 68 because robbery is not one of the offenses enumerated in
Section 68. Insofar as crimes are concerned, Section 68 refers only to election of-
fenses under the Omnibus Election Code and not to crimes under the Revised Penal
Code. For ready reference, we quote again Section 68 of the Omnibus Election
Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he
is a party is declared by final decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received
or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement pro-
vided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify including
the crime of robbery as one of the offenses enumerated in this Section. All the of-
fenses enumerated in Section 68 refer to offenses under the Omnibus Election
Code. The dissenting opinion of Justice Reyes gravely errs when it holds that
Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a
ground for "a petition for disqualification under Section 68 of the OEC and not for
cancellation of COC under Section 78 thereof." This Court has already ruled that
offenses punished in laws other than in the Omnibus Election Code cannot be a
ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the Court de-
clared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those enumer-
ated in Section 68 of the Omnibus Election Code. All other election offenses are
beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative
in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four state-
ments: (1) a statement that the candidate is a natural born or naturalized Filipino
citizen; (2) a statement that the candidate is not a permanent resident of, or immi-
grant to, a foreign country; (3) a statement that the candidate is eligible for the office
he seeks election; and (4) a statement of the candidate’s allegiance to the Constitu-
tion of the Republic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in his certificate
of candidacy when he stated under oath that he was eligible to run for mayor? The
COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run
for public office. The COMELEC concluded that Jalosjos made a false material rep-
resentation that is a ground for a petition under Section 78. The dissenting opinion
of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualifi-
cation which is a ground for a petition under Section 68 and not under Section 78.
The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is
a disqualification that is not a ground under Section 78 without, however, saying
under what specific provision of law a petition against Jalosjos can be filed to cancel
his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material represen-
tation arises from a crime penalized by prisión mayor, a petition under Section 12 of
the Omnibus Election Code or Section 40 of the Local Government Code can also
be properly filed. The petitioner has a choice whether to anchor his petition on Sec-
tion 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple remedies and the choice of
which remedy to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certifi-
cate of candidacy on the ground of ineligibility that existed at the time of the filing of
the certificate of candidacy can never give rise to a valid candidacy, and much less of a competent court, is part of the enforcement and administration of "all laws" re-
to valid votes.21 Jalosjos’ certificate of candidacy was cancelled because he was in- lating to the conduct of elections.
eligible from the start to run for Mayor. Whether his certificate of candidacy is can- To allow the COMELEC to wait for a person to file a petition to cancel the certificate
celled before or after the elections is immaterial because the cancellation on such of candidacy of one suffering from perpetual special disqualification will result in the
ground means he was never a valid candidate from the very beginning, his certificate anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special
of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his disqualification, Jalosjos was elected and served twice as mayor. The COMELEC
certificate of candidacy, and the cancellation of his certificate of candidacy retroacted will be grossly remiss in its constitutional duty to "enforce and administer all laws"
to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified relating to the conduct of elections if it does not motu proprio bar from running for
candidate for Mayor in the May 2010 elections – Cardino – who received the highest public office those suffering from perpetual special disqualification by virtue of a final
number of votes. judgment.
Decisions of this Court holding that the second-placer cannot be proclaimed winner WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and
if the first-placer is disqualified or declared ineligible22 should be limited to situations the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010
where the certificate of candidacy of the first-placer was valid at the time of filing but and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane,
subsequently had to be cancelled because of a violation of law that took place, or a respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that
legal impediment that took effect, after the filing of the certificate of candidacy. If the Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the
certificate of candidacy is void ab initio, then legally the person who filed such void highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to con-
certificate of candidacy was never a candidate in the elections at any time. All votes stitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly
for such non-candidate are stray votes and should not be counted. Thus, such non- elected Mayor of Dapitan City, Zamboanga del Norte.
candidate can never be a first-placer in the elections. If a certificate of candidacy Let copies of this Decision be furnished the Secretaries of the Department of Justice
void ab initio is cancelled on the day, or before the day, of the election, prevailing and the Department of Interior and Local Government so they can cause the arrest
jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction
of candidacy void ab initio is cancelled one day or more after the elections, all votes for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch
for such candidate should also be stray votes because the certificate of candidacy is 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.
void from the very beginning. This is the more equitable and logical approach on the SO ORDERED.
effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise,
a certificate of candidacy void ab initio can operate to defeat one or more valid cer-
tificates of candidacy for the same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus Election
Code, or under Section 40 of the Local Government Code, the COMELEC is under
a legal duty to cancel the certificate of candidacy of anyone suffering from the ac-
cessory penalty of perpetual special disqualification to run for public office by virtue
of a final judgment of conviction. The final judgment of conviction is notice to the
COMELEC of the disqualification of the convict from running for public office. The
law itself bars the convict from running for public office, and the disqualification is
part of the final judgment of conviction. The final judgment of the court is addressed
not only to the Executive branch, but also to other government agencies tasked to
implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement
the disqualification, it is assumed that the portion of the final judgment on disqualifi-
cation to run for elective public office is addressed to the COMELEC because under
the Constitution the COMELEC is duty bound to "enforce and administer all laws and
regulations relative to the conduct of an election."24 The disqualification of a convict
to run for public office under the Revised Penal Code, as affirmed by final judgment
 emoluments of the position to which he is a candidate, which bond shall be forfeited
in favor of the national, provincial, city or municipal government concerned if the
candidate, except when declared winner, fails to obtain at least 10% of the votes
cast for the office to which he has filed his certificate of candidacy, there being not
more than four (4) candidates for the same office;"
2. That, in compliance with said Republic Act No. 4421, the Commission on Elections
had, on July 20, 1965, decided to require all candidates for President, Vice-Presi-
dent, Senator and Member of the House of Representatives to file a surety bond, by
a bonding company of good reputation, acceptable to the Commission, in the sums
of P60,000.00 and P40,000.00, for President and Vice-President, respectively, and
P32,000.00 for Senator and Member of the House of Representatives;
3. That, in consequence of said Republic Act No. 4421 and the aforementioned ac-
tion of the Commission on Elections, every candidate has to pay the premium
charged by bonding companies, and, to offer thereto, either his own properties,
worth, at least, the amount of the surety bond, or properties of the same worth, be-
longing to other persons willing to accommodate him, by way of counter-bond in
favor of said bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify
from running for President, Vice-President, Senator or Member of the House of Rep-
resentatives those persons who, although having the qualifications prescribed by the
Constitution therefore, cannot file the surety bond aforementioned, owing to failure
EN BANC to pay the premium charged by the bonding company and/or lack of the property
G.R. No. L-24761 September 7, 1965 necessary for said counter-bond;
LEON G. MAQUERA, petitioner, 5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for pro-
vs. vincial, city or municipal elective offices, persons who, although possessing the qual-
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their re- ifications prescribed by law therefor, cannot pay said premium and/or do not have
spective capacities as Chairman and Members of the Commission on Elec- the property essential for the aforementioned counter-bond;
tions, and the COMMISSION ON ELECTIONS, respondents. 6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property
--------------------------- qualifications in order that a person could run for a public office and that the people
G.R. No. L-24828 September 7, 1965 could validly vote for him;
FELIPE N. AUREA and MELECIO MALABANAN, petitioners, 7. That said property qualifications are inconsistent with the nature and essence of
vs. the Republican system ordained in our Constitution and the principle of social justice
COMMISSION ON ELECTIONS, respondent. underlying the same, for said political system is premised upon the tenet that sover-
Leon G. Maquera in his own behalf as petitioner. eignty resides in the people and all government authority emanates from them, and
Ramon Barrios for respondents. this, in turn, implies necessarily that the right to vote and to be voted for shall not be
RESOLUTION dependent upon the wealth of the individual concerned, whereas social justice pre-
supposes equal opportunity for all, rich and poor alike, and that, accordingly, no per-
PER CURIAM: son shall, by reason of poverty, be denied the chance to be elected to public office;
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et and
al.," and case G.R. No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Com- 8. That the bond required in Republic Act No. 4421 and the confiscation of said bond
mission on Elections," and it appearing: are not predicated upon the necessity of defraying certain expenses or of compen-
1. That Republic Act No. 4421 requires "all candidates for national, provincial, city sating services given in connection with elections, and is, therefore, arbitrary and
and municipal offices" to post a surety bond equivalent to the one-year salary or oppressive.
The Court RESOLVED, without prejudice to rendering an extended decision, to de-
clare that said Republic Act No. 4421 is unconstitutional and hence null and void,
and, hence, to enjoin respondents herein, as well as their representatives and
agents, from enforcing and/or implementing said constitutional enactment.
EN BANC
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public
officer, who has been granted an absolute pardon by the Chief Executive, is entitled
to reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner
Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other
accused, of the complex crime of estafa thru falsification of public documents and
sentenced them to imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum, to ten (10) years and one (1) day of prision ma-
yor as maximum, and to pay a fine of P3,500. They were further ordered to jointly
and severally indemnify the government in the sum of P4,892.50 representing the
balance of the amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently af-
firmed the same. She then filed a motion for reconsideration but while said motion
was pending, she was extended on December 17, 1984 by then President Marcos
absolute pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting
that she be restored to her former post as assistant city treasurer since the same
was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in
view of the provision of the Local Government Code transferring the power of ap-
pointment of treasurers from the city governments to the said Ministry. In its 4th In-
dorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be
reinstated to her position without the necessity of a new appointment not earlier than
the date she was extended the absolute pardon. It also directed the city treasurer to
see to it that the amount of P4,892.50 which the Sandiganbayan had required to be
indemnified in favor of the government as well as the costs of the litigation, be satis-
fied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April
17, 1985 stressing that the full pardon bestowed on her has wiped out the crime
which implies that her service in the government has never been interrupted and
therefore the date of her reinstatement should correspond to the date of her preven-
tive suspension which is August 1, 1982; that she is entitled to backpay for the entire
period of her suspension; and that she should not be required to pay the proportion-
ate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the Pres-
ident for further review and action. On April 15, 1986, said Office, through Deputy
Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne
out by the records, petitioner was convicted of the crime for which she was accused.
In line with the government's crusade to restore absolute honesty in public service,
this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Res-
olution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No.
6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer
is the only ground for reinstatement to his former position and entitlement to payment
of his salaries, benefits and emoluments due to him during the period of his suspen-
sion pendente lite.
In fact, in such a situation, the former public official must secure a reappointment
before he can reassume his former position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that
"a pardon shall in no case exempt the culprit from payment of the civil indemnity
imposed upon him by the sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not
entitled to an automatic reinstatement on the basis of the absolute pardon granted
her but must secure an appointment to her former position and that, notwithstanding
said absolute pardon, she is liable for the civil liability concomitant to her previous
conviction. 3
Her subsequent motion for reconsideration having been denied, petitioner filed the
present petition in her behalf We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case
by reason of the fact that she was extended executive clemency while her conviction
was still pending appeal in this Court. There having been no final judgment of con-
viction, her employment therefore as assistant city treasurer could not be said to
have been terminated or forfeited. In other words, without that final judgment of con-
viction, the accessory penalty of forfeiture of office did not attach and the status of
her employment remained "suspended." More importantly, when pardon was issued
before the final verdict of guilt, it was an acquittal because there was no offense to
speak of. In effect, the President has declared her not guilty of the crime charged
and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of
estafa thru falsification of public documents and sentenced to imprisonment of four
years, two months and one day of prision correccional as minimum, to ten years and
one day of prision mayor as maximum. The penalty of prision mayor carries the ac-
cessory penalties of temporary absolute disqualification and perpetual special dis-
qualification from the right of suffrage, enforceable during the term of the principal
penalty. 5 Temporary absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the sentence. 6 Even if
the offender be pardoned, as to the principal penalty, the accessory penalties remain
unless the same have been expressly remitted by the pardon. 7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension from public office.
8 jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive
The propositions earlier advanced by petitioner reveal her inadequate understanding
of the nature of pardon and its legal consequences. This is not totally unexpected
considering that the authorities on the subject have not been wholly consistent par-
ticularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of
the King's wrath. But Philippine jurisprudence on the subject has been largely influ-
enced by American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from
the punishment the law inflicts for a crime he has committed. It is the private, though
official act of the executive magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the Court. ... A pardon is a deed, to
the validity of which delivery is essential, and delivery is not complete without ac-
ceptance." 8-a
At the time the antecedents of the present case took place, the pardoning power was
governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The
pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves, commutations
and pardons, remit fines and forfeitures, and with the concurrence of the Batasang
Pambansa, grant amnesty. 9
The 1981 amendments had deleted the earlier rule that clemency could be extended
only upon final conviction, implying that clemency could be given even before con-
viction. Thus, petitioner's unconditional pardon was granted even as her appeal was
pending in the High Court. It is worth mentioning that under the 1987 Constitution,
the former limitation of final conviction was restored. But be that as it may, it is our
view that in the present case, it is not material when the pardon was bestowed,
whether before or after conviction, for the result would still be the same. Having ac-
cepted the pardon, petitioner is deemed to have abandoned her appeal and her un-
reversed conviction by the Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full
and absolute pardon in relation to the decisive question of whether or not the plenary
pardon had the effect of removing the disqualifications prescribed by the Revised
Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by
the courts on the various consequences of pardon: "... we adopt the broad view ex-
pressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject
to the limitations imposed by the Constitution, the pardoning power cannot be re-
stricted or controlled by legislative action; that an absolute pardon not only blots out
the crime committed but removes all disabilities resulting from the conviction. ... (W)e
are of the opinion that the better view in the light of the constitutional grant in this
who, after an inquiry into the environmental facts, should be at liberty to atone the
rigidity of the law to the extent of relieving completely the party ... concerned from
the accessory and resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12
show the unmistakable application of the doctrinal case of Ex Parte Garland, 13
whose sweeping generalizations to this day continue to hold sway in our jurispru-
dence despite the fact that much of its relevance has been downplayed by later
American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full, it releases the punishment and blots out of
existence the guilt, so that in the eye of the law the offender is as innocent as if he
had never committed the offense. If granted before conviction, it prevents any of the
penalties and disabilities, consequent upon conviction, from attaching; if granted af-
ter conviction, it removes the penalties and disabilities and restores him to all his civil
rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
14
Such generalities have not been universally accepted, recognized or approved. 15
The modern trend of authorities now rejects the unduly broad language of the
Garland case (reputed to be perhaps the most extreme statement which has been
made on the effects of a pardon). To our mind, this is the more realistic approach.
While a pardon has generally been regarded as blotting out the existence of guilt so
that in the eye of the law the offender is as innocent as though he never committed
the offense, it does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of
the commission of the crime and the conviction thereof. It does not wash out the
moral stain. It involves forgiveness and not forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the of-
fender's innocence) as relieving the party from all the punitive consequences of his
criminal act, including the disqualifications or disabilities based on the finding of guilt.
17 But it relieves him from nothing more. "To say, however, that the offender is a "new
man", and "as innocent as if he had never committed the offense;" is to ignore the
difference between the crime and the criminal. A person adjudged guilty of an of-
fense is a convicted criminal, though pardoned; he may be deserving of punishment,
though left unpunished; and the law may regard him as more dangerous to society
than one never found guilty of crime, though it places no restraints upon him follow-
ing his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the
past. It affords no relief for what has been suffered by the offender. It does not im-
pose upon the government any obligation to make reparation for what has been suf-
fered. "Since the offense has been established by judicial proceedings, that which
has been done or suffered while they were in force is presumed to have been right-
fully done and justly suffered, and no satisfaction for it can be required." 20 This would
explain why petitioner, though pardoned, cannot be entitled to receive backpay for
lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive
declared her not guilty of the crime for which she was convicted. In the case of State
v. Hazzard, 21 we find this strong observation: "To assume that all or even a major
number of pardons are issued because of innocence of the recipients is not only to
indict our judicial system, but requires us to assume that which we all know to be
untrue. The very act of forgiveness implies the commission of wrong, and that wrong
has been established by the most complete method known to modern civilization.
Pardons may relieve from the disability of fines and forfeitures attendant upon a con-
viction, but they cannot erase the stain of bad character, which has been definitely
fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared
to concede that pardon may remit all the penal consequences of a criminal indict-
ment if only to give meaning to the fiat that a pardon, being a presidential prerogative,
should not be circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he is absolved, he
should be treated as if he were innocent. For whatever may have been the judicial
dicta in the past, we cannot perceive how pardon can produce such "moral changes"
as to equate a pardoned convict in character and conduct with one who has con-
stantly maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts
which, despite the public manifestation of mercy and forgiveness implicit in pardon,
"ordinary, prudent men will take into account in their subsequent dealings with the
actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal
disabilities and restores him to all his civil rights. But unless expressly grounded on
the person's innocence (which is rare), it cannot bring back lost reputation for hon-
esty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose
track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we
are in full agreement with the commonly-held opinion that pardon does not ipso facto
restore a convicted felon to public office necessarily relinquished or forfeited by rea-
son of the conviction 25 although such pardon undoubtedly restores his eligibility for
appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for the collective
protection, safety and benefit of the common good. They cannot be compromised to
favor private interests. To insist on automatic reinstatement because of a mistaken
notion that the pardon virtually acquitted one from the offense of estafa would be
grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing
power from refusing appointment to anyone deemed to be of bad character, a poor
moral risk, or who is unsuitable by reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineli-
gibility from public office forms part of the punishment prescribed by the Revised
Penal Code for estafa thru falsification of public documents. It is clear from the au-
thorities referred to that when her guilt and punishment were expunged by her par-
don, this particular disability was likewise removed. Henceforth, petitioner may apply
for reappointment to the office which was forfeited by reason of her conviction. And
in considering her qualifications and suitability for the public post, the facts constitut-
ing her offense must be and should be evaluated and taken into account to deter-
mine ultimately whether she can once again be entrusted with public funds. Stated
differently, the pardon granted to petitioner has resulted in removing her disqualifi-
cation from holding public employment but it cannot go beyond that. To regain her
former post as assistant city treasurer, she must re-apply and undergo the usual
procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity im-
posed upon her by the sentence. The Court cannot oblige her. Civil liability arising
from crime is governed by the Revised Penal Code. It subsists notwithstanding ser-
vice of sentence, or for any reason the sentence is not served by pardon, amnesty
or commutation of sentence. Petitioner's civil liability may only be extinguished by
the same causes recognized in the Civil Code, namely: payment, loss of the thing
due, remission of the debt, merger of the rights of creditor and debtor, compensation BELLOSILLO, J.:
and novation. 27 Petitioner comes to us on a petition for review on certiorari of the decision of 23 July
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Ful- 1985 of respondent Commission on Audit (COA) denying his claim for payment of
gencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs. back wages, after he was reinstated to the service pursuant to an executive clem-
SO ORDERED. ency. He prays for the extraordinary remedy of mandamus against public respond-
ents to enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Tel-
ecommunications in Lucena City. On 1 April 1975, petitioner was summarily dis-
missed from the service on the ground of dishonesty in accordance with the decision
of the then Ministry of Public Works, Transportation and Communications in Adm.
Case No. 975 for the loss of several telegraph poles which were located at the Sar-
iaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not
appeal from the decision.
Based on the same facts obtaining in the administrative action, a criminal case for
qualified theft was filed against petitioner with the then Court of First Instance (now
Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its
decision acquitting petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980,
petitioner's request to be reinstated was denied by the Bureau of Telecommunica-
tions. Hence, petitioner pleaded to the President of the Philippines for executive
clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of
Transportation and Communications and the Civil Service Commission, Deputy
Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President,
per Resolution No. O.P. 1800, granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries
effective 1 April 1975, the date of his dismissal from the service. This was denied by
the COA in its 5th Indorsement dated 12 October 1982 on the ground that the exec-
utive clemency granted to him did not provide for the payment of back salaries and
that he has not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March 1984 but the rec-
FIRST DIVISION ords do not show whether petitioner's reinstatement was to the same position of
Supervising Lineman.1
G.R. No. 75025 September 14, 1993 Petitioner again filed a claim to recover his back salaries for the period from 1 April
VICENTE GARCIA, petitioner, 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Deci-
vs. sion No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE denied the claim stating that the executive clemency was silent on the payment of
MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE RE- back wages and that he had not rendered service during the period of his claim.
GIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents. Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the
Eulogio B. Alzaga for petitioner. President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr.,
The Solicitor General for respondents. by authority of the President, denied the appeal "due to legal and constitutional con-
straint,"2 holding that this Court is the proper forum to take cognizance of the appeal
on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the
1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled to the
payment of back wages after having been reinstated pursuant to the grant of exec-
utive clemency.
In his comment to the petition, the Solicitor General recommends that the petition be
given due course and the petitioner be awarded back wages to be determined in the
light of existing laws and jurisprudence. The Solicitor General submits that the award
is implicit in the grant of executive clemency, the ultimate objective of which is to
accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following
reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him
from administrative liability; (b) petitioners unexplained failure to appeal the decision
in the administrative case was tantamount to a waiver or renunciation of his right to
back wages; (c) the executive clemency was granted to petitioner for the purpose of
reinstatement only since it was silent on the matter of back wages; (d) the award of
back wages is allowed only if the respondent is exonerated from the administrative
charge that his suspension or dismissal is declared illegal or unjustified by the court;
and, (e) petitioner did not render any service during the period before his reinstate-
ment, hence, he is not entitled to back wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the pardoning
power to be exercised as an act of grace and humanity, in proper cases. Without
such a power of clemency, to be exercised by some department or functionary of a
government, a country would be most imperfect and deficient in its political morality
and in that attribute of Deity whose judgments are always tempered with money.3
Our Constitution reposes in the President the power and the exclusive prerogative
to extend executive clemency under the following circumstances:
Except in cases of impeachment or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and for-
feitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.4
From among the different acts of executive clemency spelled out above, the clem-
ency granted to petitioner in the instant case partakes of the nature of an executive
pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications
interposed no objection to the petition, while the Minister of Transportation and Com-
munications, in his 4th Indorsement dated November 17, 1980, favorably recom-
mended the grant of executive clemency to petitioner for the reason that "while it is
a rule that an administrative case is separate and distinct from a criminal case and
an acquittal in the latter case dos not ipso facto result in the exoneration in the former
case, yet an exception could arise if the basis for the acquittal was the innocence of
the accused as in the case of petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil
service Commission recommends the grant of executive clemency to petitioner in
view of the findings of the court that —
instead of coming forward to the defense of the accused who actually was authorized
to uproot or recover the poles in question and of commending the latter for his high
sense of responsibility in preventing losses to the government, said high officials had
even the temerity to disown and deny the authority they gave to the accused result-
ing in his separation from the service and having him all alone in defending himself
against the accusation of the very government he tried to protect.
After a careful study, this Office is inclined to grant executive clemency to petitioner
in the light of this decision of the court acquitting him of the crime of qualified theft
which was based on the same acts obtaining in Administrative Case No. 975 against
him, coupled with the favorable recommendation of the Minister of Transportation
and Communications and the Civil Service Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clem-
ency.5
Time and again this Court has unfolded the effects of a pardon upon the individual
to whom it is granted. In Monsanto v. Factoran,6 we have firmly established the gen-
eral rule that while a pardon has generally been regarded as blotting out the exist-
ence of guilt so that in the eyes of the law the offender is as innocent as though he
never committed the offense, it does not operate for all purposes. The very essence
of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not
erase the fact of the commission of the crime and the conviction thereof. Pardon
frees the individual from all the penalties and legal disabilities and restores to him all
his civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender
regains his eligibility for appointment to public office which was forfeited by reason
of the conviction of the offense. But since pardon does not generally result in auto-
matic reinstatement because the offender has to apply for reappointment, he is not
entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the individual, it
affirms this innocence and makes him a new man and as innocent; as if he had not
been found guilty of the offense charged.7 When a person is given pardon because
he did not truly commit the offense, the pardon relieves the party from all punitive
consequences of his criminal act, thereby restoring to him his clean name, good
reputation and unstained character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for dishonesty and
consequently dismissed from the service. However, he was later acquitted by the
trial court of the charge of qualified theft based on the very same acts for which he
was dismissed. The acquittal of petitioner by the trial court was founded not on lack
of proof beyond reasonable doubt but on the fact that petitioner did not commit the
offense imputed to him. Aside from finding him innocent of the charge, the trial court or not sufficiently proven, otherwise, their dismissal would have been valid and jus-
commended petitioner for his concern and dedication as a public servant. Verily, tified. In contrast, the case before us is different, involving as it does circumstances
petitioner's innocence is the primary reason behind the grant of executive clemency that impel us to deviate from the general rule previously laid down on the recovery
to him, bolstered by the favorable recommendations for his reinstatement by the of back wages for five (15) years. Petitioner's reinstatement in the instant case which
Ministry of Transportation and Communications and the Civil Service Commission. was ordered pursuant to a grant of executive clemency was effected not because of
The bestowal of executive clemency on petitioner in effect completely obliterated the lack of sufficient proof of his commission of the offense but that, more importantly,
adverse effects of the administrative decision which found him guilty of dishonesty he did not commit the offense charged. Verily, law, equity and justice dictate that
and ordered his separation from the service. This can be inferred from the executive petitioner be afforded compassion for the embarrassment, humiliation and, above
clemency itself exculpating petitioner from the administrative charge and thereby di- all, injustice caused to him and his family by his unfounded dismissal. This Court
recting his reinstatement, which is rendered automatic by the grant of the pardon. cannot help surmising the painful stigma that must have caused petitioner, the incur-
This signifies that petitioner need no longer apply to be reinstated to his former em- sion on his dignity and reputation, for having been adjudged, albeit wrongfully, a
ployment; he is restored to his office ipso facto upon the issuance of the clemency. dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to
Petitioner's automatic reinstatement to the government service entitles him to back award petitioner full back wages from 1 April 1975 when he was illegally dismissed,
wages.8 This is meant to afford relief to petitioner who is innocent from the start and to 12 March 1984 when he was reinstated. The payment shall be without deduction
to make reparation for what he has suffered as a result of his unjust dismissal from or qualification.
the service. To rule otherwise would defeat the very intention of the executive clem- WHEREFORE, the petition is GRANTED. The decision of respondent Commission
ency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered
to those with have been illegally dismissed and were thus ordered reinstated or to ordering public respondents, the Chairman of the Commission on Audit, the Minister
those otherwise acquitted of the charges against them.9 There is no doubt that peti- (now Secretary) of Land Transportation and Communications, the Regional Director
tioner's case falls within the situations aforementioned to entitle him to back wages. of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead,
Further, it is worthy to note that the dismissal of petitioner was not the result of any to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March
criminal conviction that carried with it forfeiture of the right to hold public office, but 1984 based on his latest salary scale.
is the direct consequence of an administrative decision of a branch of the Executive SO ORDERED.
Department over which the President, as its head, has the power of control. The
President's control has been defined to mean "the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the performance
of his duties and to the judgment of the former for the latter." 10 In pardoning petitioner
and ordering his reinstatement, the Chief Executive exercised his power of control
and set aside the decision of the Ministry of Transportation and Communications.
The clemency nullified the dismissal of petitioner and relieved him from administra-
tive liability. The separation of the petitioner from the service being null and void, he
is thus entitled to back wages.
After having been declared innocent of the crime of qualified theft, which also served
as basis for the administrative charge, petitioner should not be considered to have
left his office for all legal purposes, so that he is entitled to all the rights and privileges
that accrued to him by virtue of the office held, including back wages. 11
Established jurisprudence fixes recovery of back wages to a period of five (5) years
to be paid an illegally dismissed government employee who has been ordered rein-
stated. 12 The cases heretofore decided by this Court show that petitioners therein
were employees of local governments who were removed from office by their local
officials. The reasons given for their removal were abolition of office or position, re-
duction of work force, or lack of funds on the part of the local governments con-
cerned, which reasons were found by this Court to be either devoid of factual basis
 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, pe-
titioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secre-
tary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Sec-
retary of Environment and Natural Resources; VICENTE V. JAYME, as Secre-
tary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N.
DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary
of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TE-
ODORO 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. BENG-
ZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transporta-
tion and Communication; GUILLERMO CARAGUE, as Commissioner of the
Budget; and SOLITA MONSOD, as Head of the National Economic Develop-
ment Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for peti-
tioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and
are being resolved jointly as both seek a declaration of the unconstitutionality of Ex-
ecutive 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
EN BANC allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
G.R. No. 83896 February 22, 1991 the subordinate official who is next in rank, but in no case shall any official hold more
CIVIL LIBERTIES UNION, petitioner, than two positions other than his primary position.
vs. Sec. 3. In order to fully protect the interest of the government in government-owned
THE EXECUTIVE SECRETARY, respondent. or controlled corporations, at least one-third (1/3) of the members of the boards of
G.R. No. 83815 February 22, 1991 such corporation should either be a secretary, or undersecretary, or assistant secre-
tary.
Petitioners maintain that this Executive Order which, in effect, allows members of
the Cabinet, their undersecretaries and assistant secretaries to hold other govern-
ment 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 Consti-
tution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their dep-
uties or assistants shall not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respond-
ents, 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.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or em-
ployment during their tenure. In addition to seeking a declaration of the unconstitu-
tionality 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 respond-
ents 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 notwith-
standing the aforequoted "absolute and self-executing" provision of the 1987 Con-
stitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article
VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion
No. 73, series of 1987,5 declaring that Cabinet members, their deputies (undersec-
retaries) and assistant secretaries may hold other public office, including member-
ship 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: promul-
gated 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 sep-
arate 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 mul-
tiple jobs for the President, the Vice-President, the members of the Cabinet, and
their deputies and subalterns, who are the leaders of government expected to lead
by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no ap-
pointive official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or con-
trolled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, se-
ries of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of
19879 and DOJ Opinion No. 155, series of 1988,10 being the first official construction
and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2)
of Section 7, Article I-XB of the Constitution, involving the same subject of appoint-
ments 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 con-
sequently 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 peti-
tioners 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 be-
tween petitioners and public respondents lies on the constitutional basis of the ex-
ception. 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 ap-
pointive 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 ap-
pointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or con-
trolled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the pro-
vision 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 adop-
tion, 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 circum-
stances under which the Constitution was framed. The object is to ascertain the rea-
son 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 pur-
pose.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 pur-
poses 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 Corpora-
tions, 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, instru-
mentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Vi-
rata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ru-
ben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O.
Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teo-
doro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discon-
tent 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 assur-
ance given by its proponents that the scandalous practice of Cabinet members hold-
ing 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 Con-
stitutional Commission should see it fit to formulate another provision, Sec. 13, Arti-
cle VII, specifically prohibiting the President, Vice-President, members of the Cabi-
net, 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 constitu-
tional provisions in question, the intent of the framers of the Constitution was to im-
pose a stricter prohibition on the President and his official family in so far as holding
other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with
other provisions of the Constitution on the disqualifications of certain public officials
or employees from holding other offices or employment. Under Section 13, Article
VI, "(N)o Senator or Member of the House of Representatives may hold any other
office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o
member of the armed forces in the active service shall, at any time, be appointed in
any capacity to a civilian position in the Government, including government-owned
or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-
B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office
or employment, the prohibition pertains to an office or employment in the government
and government-owned or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states that "(T)he President,
Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employ-
ment 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, partici-
pate in any business, or be financially interested in any contract with, or in any fran-
chise, 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 Pres-
ident 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 Depart-
ment. Commissioner Foz Commented, "We actually have to be stricter with the Pres-
ident 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 dep-
uties 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 Consti-
tution" in Section 13, Article VII cannot possibly refer to the broad exceptions pro-
vided under Section 7, Article I-XB of the 1987 Constitution. To construe said quali-
fying phrase as respondents would have us do, would render nugatory and mean-
ingless the manifest intent and purpose of the framers of the Constitution to impose
a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respondents' interpretation that Section 13 of Arti-
cle 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 imme-
diately 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 em-
ployment when so authorized by the Constitution, but who as an elective public offi-
cial 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 Sec-
tion 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-Presi-
dent to become a member of the Cabinet,15 and to act as President without relin-
quishing the Vice-Presidency where the President shall not nave been chosen or
fails to qualify.16 Such absurd consequence can be avoided only by interpreting the
two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as constituting
the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that
all the provisions bearing upon a particular subject are to be brought into view and
to be so interpreted as to effectuate the great purposes of the instrument.17 Sections
bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution18 and one section is not to be al-
lowed 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 partic-
ular instances cited in the Constitution itself, to wit: the Vice-President being ap-
pointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section
13, Article VII of the Constitution must not, however, be construed as applying to
posts occupied by the Executive officials specified therein without additional com-
pensation in an ex-officio capacity as provided by law and as required22 by the pri-
mary 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 char-
acterize these posts otherwise would lead to absurd consequences, among which
are: The President of the Philippines cannot chair the National Security Council re-
organized 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 Employ-
ment Administration (POEA), both of which are attached to his department for policy
coordination and guidance. Neither can his Undersecretaries and Assistant Secre-
taries 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 conse-
quences. A Constitution, viewed as a continuously operative charter of government,
is not to be interpreted as demanding the impossible or the impracticable; and un-
reasonable 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 "au-
thority derived from official character merely, not expressly conferred upon the indi-
vidual character, but rather annexed to the official position." Ex-officio likewise de-
notes 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 desig-
nated a representative from that office. The same is true with respect to the repre-
sentatives 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 Transporta-
tion and Communications acting as Chairman of the Maritime Industry Authority34
and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, in-
consistent, incompatible, or otherwise alien to the primary function of a cabinet offi-
cial, such additional functions would fall under the purview of "any other office" pro-
hibited 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 manage-
ment functions and/or monetary compensation, such as but not limited to chairman-
ships or directorships in government-owned or controlled corporations and their sub-
sidiaries.
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, ex-
pertise 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 direc-
tion, 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 ca-
pacity 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 Con-
stitution, such additional duties or functions must be required by the primary func-
tions 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 compen-
sation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It
should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal contem-
plation 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 compen-
sation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commis-
sioner 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 func-
tions 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 Com-
missioner Blas Ople, Commissioner Monsod pointed out that there are instances
when although not required by current law, membership of certain high-ranking ex-
ecutive officials in other offices and corporations is necessary by reason of said offi-
cials' primary functions. The example given by Commissioner Monsod was the Min-
ister 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 func-
tions 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 prohibi-
tion 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 "styl-
ing" 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 pro-
vided 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 consti-
tuting "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 re-
sulting Constitution, resort thereto may be had only when other guides fail42 as said
proceedings are powerless to vary the terms of the Constitution when the meaning
is clear.1âwphi1 Debates in the constitutional convention "are of value as showing
the views of the individual members, and as indicating the reasons for their votes,
but they give us no light as to the views of the large majority who did not talk, much
less of the mass of our fellow citizens whose votes at the polls gave that instrument
the force of fundamental law. We think it safer to construe the constitution from what
appears upon its face."43 The proper interpretation therefore depends more on how
it was understood by the people adopting it than in the framers's understanding
thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution Jr., Secretary of Local Government45 Luis Santos, Secretary of National Defense
seeks to prohibit the President, Vice-President, members of the Cabinet, their dep- Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the
uties or assistants from holding during their tenure multiple offices or employment in Budget Guillermo Carague to immediately relinquish their other offices or employ-
the government, except in those cases specified in the Constitution itself and as ment, as herein defined, in the government, including government-owned or con-
above clarified with respect to posts held without additional compensation in an ex- trolled corporations and their subsidiaries. With respect to the other named respond-
officio capacity as provided by law and as required by the primary functions of their ents, the petitions have become moot and academic as they are no longer occupying
office, the citation of Cabinet members (then called Ministers) as examples during the positions complained of.
the debate and deliberation on the general rule laid down for all appointive officials During their tenure in the questioned positions, respondents may be considered de
should be considered as mere personal opinions which cannot override the consti- facto officers and as such entitled to emoluments for actual services rendered.46 It
tution's manifest intent and the people' understanding thereof. has been held that "in cases where there is no de jure, officer, a de facto officer,
In the light of the construction given to Section 13, Article VII in relation to Section 7, who, in good faith has had possession of the office and has discharged the
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July duties pertaining thereto, is legally entitled to the emoluments of the office,
23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cab- and may in an appropriate action recover the salary, fees and other compen-
inet members, undersecretaries or assistant secretaries may hold in addition to their sations attached to the office. This doctrine is, undoubtedly, supported on eq-
primary position to not more than two (2) positions in the government and govern- uitable grounds since it seems unjust that the public should benefit by the
ment corporations, Executive Order No. 284 actually allows them to hold multiple services of an officer de facto and then be freed from all liability to pay any
offices or employment in direct contravention of the express mandate of Section 13, one for such services.47 Any per diem, allowances or other emoluments re-
Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise ceived by the respondents by virtue of actual services rendered in the ques-
provided in the 1987 Constitution itself. tioned positions may therefore be retained by them.
The Court is alerted by respondents to the impractical consequences that will result WHEREFORE, subject to the qualification above-stated, the petitions are
from a strict application of the prohibition mandated under Section 13, Article VII on GRANTED. Executive Order No. 284 is hereby declared null and void and is accord-
the operations of the Government, considering that Cabinet members would be ingly set aside.
stripped of their offices held in an ex-officio capacity, by reason of their primary po- SO ORDERED.
sitions 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 prohibi-
tion. With respect to other offices or employment held by virtue of legislation, includ-
ing 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 with-
out the distraction of other governmental offices or employment. He should be pre-
cluded from dissipating his efforts, attention and energy among too many positions
of responsibility, which may result in haphazardness and inefficiency. Surely the ad-
vantages to be derived from this concentration of attention, knowledge and exper-
tise, particularly at this stage of our national and economic development, far out-
weigh 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,
EN BANC
G.R. No. 88831 November 8, 1990
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner,
vs.
THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.
Montemayor & Montemayor Law Office for private respondent.

GRIÑO-AQUINO, J.:
These two cases were consolidated because they have the same objective; the dis-
qualification under Section 68 of the Omnibus Election Code of the private respond-
ent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to
which he was elected in the local elections of January 18, 1988, on the ground that
he is a green card holder, hence, a permanent resident of the United States of Amer-
ica, not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision dated January
13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito
Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C.
Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to
the local elections on January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of
the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531
dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for
the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito
Miguel on account of his being a green card holder.
In his answer to both petitions, Miguel admitted that he holds a green card issued to
him by the US Immigration Service, but he denied that he is a permanent resident of
the United States. He allegedly obtained the green card for convenience in order
that he may freely enter the United States for his periodic medical examination and
to visit his children there. He alleged that he is a permanent resident of Bolinao,
Pangasinan, that he voted in all previous elections, including the plebiscite on Feb-
ruary 2,1987 for the ratification of the 1987 Constitution, and the congressional elec-
tions on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with the exception
of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:
The possession of a green card by the respondent (Miguel) does not sufficiently
establish that he has abandoned his residence in the Philippines. On the contrary,
inspite (sic) of his green card, Respondent has sufficiently indicated his intention to
continuously reside in Bolinao as shown by his having voted in successive elections
in said municipality. As the respondent meets the basic requirements of citizenship
and residence for candidates to elective local officials (sic) as provided for in Section
42 of the Local Government Code, there is no legal obstacle to his candidacy for
mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an immigrant of a foreign coun-
try and respondent having admitted that he is a green card holder, it is incumbent
upon him, under Section 68 of the Omnibus Election Code, to prove that he "has
waived his status as a permanent resident or immigrant" to be qualified to run for
elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel,
respondents," the petitioner prays for a review of the decision dated June 21, 1989
of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs.
Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional
Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed
by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist
from further proceeding in the quo warranto case. The Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case questioning the qualifi-
cation of the petitioner as resident of the Philippines, after the COMELEC has ruled
that the petitioner meets the very basic requirements of citizenship and residence
for candidates to elective local officials (sic) and that there is no legal obstacles (sic)
for the candidacy of the petitioner, considering that decisions of the Regional Trial
Courts on quo warranto cases under the Election Code are appealable to the COME-
LEC. (p. 22, Rollo, G.R. No. 88831.)
These two cases pose the twin issues of: (1) whether or not a green card is proof
that the holder is a permanent resident of the United States, and (2) whether re-
spondent Miguel had waived his status as a permanent resident of or immigrant to
the U.S.A. prior to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this Constitution alle-
giance at all times, and any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another country during his tenure
shall be dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of the
Philippines (B.P. Blg. 881) provides:
SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immi-
grant to a foreign country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent resident or immi-
grant of a foreign country in accordance with the residence requirement provided for
in the election laws. (Sec. 25, 1971, EC).
In view of current rumor that a good number of elective and appointive public officials
in the present administration of President Corazon C. Aquino are holders of green
cards in foreign countries, their effect on the holders' right to hold elective public
office in the Philippines is a question that excites much interest in the outcome of
this case.
In the case of Merito Miguel, the Court deems it significant that in the "Application
for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of
State) which Miguel filled up in his own handwriting and submitted to the US Em-
bassy in Manila before his departure for the United States in 1984, Miguel's answer
to Question No. 21 therein regarding his "Length of intended stay (if permanently, so
state)," Miguel's answer was, "Permanently."
On its face, the green card that was subsequently issued by the United States De-
partment of Justice and Immigration and Registration Service to the respondent
Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the
back of the card, the upper portion, the following information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled to reside permanently and work in the United
States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984
constituted an abandonment of his domicile and residence in the Philippines. For he
did not go to the United States merely to visit his children or his doctor there; he
entered the limited States with the intention to have there permanently as evidenced
by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that
application of his, he was issued by the U.S. Government the requisite green card
or authority to reside there permanently.
Immigration is the removing into one place from another; the act of immigrating the
entering into a country with the intention of residing in it.
An immigrant is a person who removes into a country for the purpose of permanent
residence. As shown infra 84, however, statutes sometimes give a broader meaning
to the term "immigrant." (3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary and local allegiance to the
U.S., the country in which he resides (3 CJS 527). This is in return for the protection
given to him during the period of his residence therein.
Aliens reading in the limited States, while they are permitted to remain, are in general
entitled to the protection of the laws with regard to their rights of person and property
and to their civil and criminal responsibility.
In general, aliens residing in the United States, while they are permitted to remain
are entitled to the safeguards of the constitution with regard to their rights of person
and property and to their civil and criminal responsibility. Thus resident alien friends
are entitled to the benefit of the provision of the Fourteenth Amendment to the federal
constitution that no state shall deprive "any person" of life liberty, or property without
due process of law, or deny to any person the equal protection of the law, and the
protection of this amendment extends to the right to earn a livelihood by following
the ordinary occupations of life. So an alien is entitled to the protection of the provi-
sion of the Fifth Amendment to the federal constitution that no person shall be de-
prived of life, liberty, or property without due process of law. (3 CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any public officer
or employee who seeks to change his citizenship or acquire the status of an immi-
grant of another country during his tenure shall be dealt with by law" is not applicable
to Merito Miguel for he acquired the status of an immigrant of the United States be-
fore he was elected to public office, not "during his tenure" as mayor of Bolinao,
Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg.
881), which provides:
xxx xxx xxx
Any person who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless such person
has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.'
Did Miguel, by returning to the Philippines in November 1987 and presenting himself
as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive
his status as a permanent resident or immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the law requires that the
candidate who is a green card holder must have "waived his status as a permanent
resident or immigrant of a foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself constitute a waiver of
his status as a permanent resident or immigrant of the United States. The waiver of
his green card should be manifested by some act or acts independent of and done
prior to filing his candidacy for elective office in this country. Without such prior
waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election
Code).
Respondent Merito Miguel admits that he holds a green card, which proves that he
is a permanent resident or immigrant it of the United States, but the records of this
case are starkly bare of proof that he had waived his status as such before he ran
for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold
that he was disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to find. Resi-
dence in the municipality where he intends to run for elective office for at least one
(1) year at the time of filing his certificate of candidacy, is one of the qualifications
that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2,
Local Government Code). Miguel did not possess that qualification because he was
a permanent resident of the United States and he resided in Bolinao for a period of
only three (3) months (not one year) after his return to the Philippines in November
1987 and before he ran for mayor of that municipality on January 18, 1988.
In banning from elective public office Philippine citizens who are permanent resi-
dents or immigrants of a foreign country, the Omnibus Election Code has laid down
a clear policy of excluding from the right to hold elective public office those Philippine
citizens who possess dual loyalties and allegiance. The law has reserved that privi-
lege for its citizens who have cast their lot with our country "without mental reserva-
tions or purpose of evasion." The assumption is that those who are resident aliens
of a foreign country are incapable of such entire devotion to the interest and welfare
of their homeland for with one eye on their public duties here, they must keep another
eye on their duties under the laws of the foreign country of their choice in order to
preserve their status as permanent residents thereof.
Miguel insists that even though he applied for immigration and permanent residence
in the United States, he never really intended to live there permanently, for all that
he wanted was a green card to enable him to come and go to the U.S. with ease. In
other words, he would have this Court believe that he applied for immigration to the
U.S. under false pretenses; that all this time he only had one foot in the United States
but kept his other foot in the Philippines. Even if that were true, this Court will not
allow itself to be a party to his duplicity by permitting him to benefit from it, and giving
him the best of both worlds so to speak.
Miguel's application for immigrant status and permanent residence in the U.S. and
his possession of a green card attesting to such status are conclusive proof that he
is a permanent resident of the U.S. despite his occasional visits to the Philippines.
The waiver of such immigrant status should be as indubitable as his application for
it. Absent clear evidence that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate U.S. authorities before he ran for
mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that
he was disqualified to run for said public office, hence, his election thereto was null
and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in
SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are
hereby set aside. The election of respondent Merito C. Miguel as municipal mayor
of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.
SO ORDERED.
EN BANC
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES,
SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT,
SALVADOR NEE ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.

CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorso-
gon on January 22, 1988, and assumed office in due time. On October 27, 1988, the
League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its
President, Salvador Estuye, who was also suing in his personal capacity, filed with
the Commission on Elections a petition for the annulment of Frivaldo; election and
proclamation on the ground that he was not a Filipino citizen, having been natural-
ized in the United States on January 20, 1983. In his answer dated May 22, 1988,
Frivaldo admitted that he was naturalized in the United States as alleged but pleaded
the special and affirmative defenses that he had sought American citizenship only to
protect himself against President Marcos. His naturalization, he said, was "merely
forced upon himself as a means of survival against the unrelenting persecution by
the Martial Law Dictator's agents abroad." He added that he had returned to the
Philippines after the EDSA revolution to help in the restoration of democracy. He
also argued that the challenge to his title should be dismissed, being in reality a quo
warranto petition that should have been filed within ten days from his proclamation,
in accordance with Section 253 of the Omnibus Election Code. The League, moreo-
ver, was not a proper party because it was not a voter and so could not sue under
the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but the respond-
ent Commission on Elections decided instead by its Order of January 20, 1988, to
set the case for hearing on the merits. His motion for reconsideration was denied in
another Order dated February 21, 1988. He then came to this Court in a petition for
certiorari and prohibition to ask that the said orders be set aside on the ground that
they had been rendered with grave abuse of discretion. Pending resolution of the
petition, we issued a temporary order against the hearing on the merits scheduled
by the COMELEC and at the same time required comments from the respondents.
In their Comment, the private respondents reiterated their assertion that Frivaldo
was a naturalized American citizen and had not reacquired Philippine citizenship on
the day of the election on January 18, 1988. He was therefore not qualified to run for
and be elected governor. They also argued that their petition in the Commission on
Elections was not really for quo warranto under Section 253 of the Omnibus Election
Code. The ultimate purpose was to prevent Frivaldo from continuing as governor,
his candidacy and election being null and void ab initio because of his alienage. Even
if their petition were to be considered as one for quo warranto, it could not have been
filed within ten days from Frivaldo's proclamation because it was only in September
1988 that they received proof of his naturalization. And assuming that the League
itself was not a proper party, Estuye himself, who was suing not only for the League
but also in his personal capacity, could nevertheless institute the suit by himself
alone.
Speaking for the public respondent, the Solicitor General supported the contention
that Frivaldo was not a citizen of the Philippines and had not repatriated himself after
his naturalization as an American citizen. As an alien, he was disqualified from public
office in the Philippines. His election did not cure this defect because the electorate
of Sorsogon could not amend the Constitution, the Local Government Code, and the
Omnibus Election Code. He also joined in the private respondent's argument that
Section 253 of the Omnibus Election Code was not applicable because what the
League and Estuye were seeking was not only the annulment of the proclamation
and election of Frivaldo. He agreed that they were also asking for the termination of
Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a
Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his
naturalization as an American citizen was not "impressed with voluntariness." In sup-
port he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a
German national's naturalization in Liechtenstein was not recognized because it had
been obtained for reasons of convenience only. He said he could not have repatri-
ated himself before the 1988 elections because the Special Committee on Naturali-
zation created for the purpose by LOI No. 27C had not yet been organized then. His
oath in his certificate of candidacy that he was a natural-born citizen should be a
sufficient act of repatriation. Additionally, his active participation in the 1987 congres-
sional elections had divested him of American citizenship under the laws of the
United States, thus restoring his Philippine citizenship. He ended by reiterating his
prayer for the rejection of the move to disqualify him for being time-barred under
Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised, the Court has
decided to resolve it directly instead of allowing the normal circuitous route that will
after all eventually end with this Court, albeit only after a, long delay. We cannot
permit this delay. Such delay will be inimical to the public interest and the vital prin-
ciples of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this ques-
tion as the sole judge of all contests relating to the election, returns and qualifications
of the members of the Congress and elective provincial and city officials. However,
the decision on Frivaldo's citizenship has already been made by the COMELEC
through its counsel, the Solicitor General, who categorically claims that Frivaldo is a
foreigner. We assume this stance was taken by him after consultation with the public
respondent and with its approval. It therefore represents the decision of the COME-
LEC itself that we may now review. Exercising our discretion to interpret the Rules
of Court and the Constitution, we shall consider the present petition as having been
filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the
aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen
of the Philippines at the time of his election on January 18, 1988, as provincial gov-
ernor of Sorsogon. All the other issues raised in this petition are merely secondary
to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution
that all public officials and employees owe the State and the Constitution "allegiance
at all times" and the specific requirement in Section 42 of the Local Government
Code that a candidate for local elective office must be inter alia a citizen of the Phil-
ippines and a qualified voter of the constituency where he is running. Section 117 of
the Omnibus Election Code provides that a qualified voter must be, among other
qualifications, a citizen of the Philippines, this being an indispensable requirement
for suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described
himself as a "natural-born" citizen of the Philippines, omitting mention of any subse-
quent loss of such status. The evidence shows, however, that he was naturalized as
a citizen of the United States in 1983 per the following certification from the United
States District Court, Northern District of California, as duly authenticated by Vice
Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, Cal-
ifornia, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915,
was naturalized in this Court on January 20, 1983, and issued Certificate of Natural-
ization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)
ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his
answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a meas-
ure of protection from the persecution of the Marcos government through his agents
in the United States.
The Court sees no reason not to believe that the petitioner was one of the enemies
of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof
he was coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally unac-
ceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo,
and some of them subject to greater risk than he, who did not find it necessary —
nor do they claim to have been coerced — to abandon their cherished status as
Filipinos. They did not take the oath of allegiance to the United States, unlike the
petitioner who solemnly declared "on oath, that I absolutely and entirely renounce
and abjure all allegiance and fidelity to any foreign prince, potentate, state or sover-
eignty of whom or which I have heretofore been a subject or citizen," meaning in his
case the Republic of the Philippines. The martyred Ninoy Aquino heads the impres-
sive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philip-
pine citizenship despite the perils of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the international law principle of
effective nationality which is clearly not applicable to the case at bar. This principle
is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nation-
ality Laws as follows:
Art. 5. Within a third State a person having more than one nationality shall be treated
as if he had only one. Without prejudice to the application of its law in matters of
personal status and of any convention in force, a third State shall, of the nationalities
which any such person possesses, recognize exclusively in its territory either the
nationality of the country in which he is habitually and principally resident or the na-
tionality of the country with which in the circumstances he appears to be in fact most
closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34 years when
he applied for and acquired naturalization in Liechtenstein one month before the
outbreak of World War II. Many members of his family and his business interests
were in Germany. In 1943, Guatemala, which had declared war on Germany, ar-
rested Nottebohm and confiscated all his properties on the ground that he was a
German national. Liechtenstein thereupon filed suit on his behalf, as its citizen,
against Guatemala. The International Court of Justice held Nottebohm to be still a
national of Germany, with which he was more closely connected than with Liechten-
stein.
That case is not relevant to the petition before us because it dealt with a conflict
between the nationality laws of two states as decided by a third state. No third state
is involved in the case at bar; in fact, even the United States is not actively claiming
Frivaldo as its national. The sole question presented to us is whether or not Frivaldo
is a citizen of the Philippines under our own laws, regardless of other nationality
laws. We can decide this question alone as sovereign of our own territory, conform-
ably to Section 1 of the said Convention providing that "it is for each State to deter-
mine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein
whereas in the present case Frivaldo is rejecting his naturalization in the United
States.
If he really wanted to disavow his American citizenship and reacquire Philippine cit-
izenship, the petitioner should have done so in accordance with the laws of our coun-
try. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citi-
zenship may be reacquired by direct act of Congress, by naturalization, or by repat-
riation.
While Frivaldo does not invoke either of the first two methods, he nevertheless claims
he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims
that by actively participating in the elections in this country, he automatically forfeited
American citizenship under the laws of the United States. Such laws do not concern
us here. The alleged forfeiture is between him and the United States as his adopted
country. It should be obvious that even if he did lose his naturalized American citi-
zenship, such forfeiture did not and could not have the effect of automatically restor-
ing his citizenship in the Philippines that he had earlier renounced. At best, what
might have happened as a result of the loss of his naturalized citizenship was that
he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270 be-
cause the Special Committee provided for therein had not yet been constituted
seems to suggest that the lack of that body rendered his repatriation unnecessary.
That is far-fetched if not specious Such a conclusion would open the floodgates, as
it were. It would allow all Filipinos who have renounced this country to claim back
their abandoned citizenship without formally rejecting their adoptedstate and reaf-
firming their allegiance to the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that
by simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions — surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant
simply was that the petitioner had to wait until this was done, or seek naturalization
by legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are seeking
to prevent Frivaldo from continuing to discharge his office of governor because he is
disqualified from doing so as a foreigner. Qualifications for public office are continu-
ing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of the
required qualifications is lost, his title may be seasonably challenged. If, say, a fe-
male legislator were to marry a foreigner during her term and by her act or omission
acquires his nationality, would she have a right to remain in office simply because
the challenge to her title may no longer be made within ten days from her proclama-
tion? It has been established, and not even denied, that the evidence of Frivaldo's
naturalization was discovered only eight months after his proclamation and his title
was challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in
this country while owing exclusive allegiance to another country. The fact that he
was elected by the people of Sorsogon does not excuse this patent violation of the EN BANC
salutary rule limiting public office and employment only to the citizens of this country. G.R. No. 86564 August 1, 1989
The qualifications prescribed for elective office cannot be erased by the electorate RAMON L. LABO, JR., petitioner,
alone. The will of the people as expressed through the ballot cannot cure the vice of vs.
ineligibility, especially if they mistakenly believed, as in this case, that the candidate THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARD-
was qualified. Obviously, this rule requires strict application when the deficiency is IZABAL, respondents
lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he Estelito P. Mendoza for petitioner.
must owe his total loyalty to this country only, abjuring and renouncing all fealty and Rillera and Quintana for private respondent.
fidelity to any other state.
It is true as the petitioner points out that the status of the natural-born citizen is fa- CRUZ, J.:
vored by the Constitution and our laws, which is all the more reason why it should The petitioner asks this Court to restrain the Commission on Elections from looking
be treasured like a pearl of great price. But once it is surrendered and renounced, into the question of his citizenship as a qualification for his office as Mayor of Baguio
the gift is gone and cannot be lightly restored. This country of ours, for all its difficul- City. The allegation that he is a foreigner, he says, is not the issue. The issue is
ties and limitations, is like a jealous and possessive mother. Once rejected, it is not whether or not the public respondent has jurisdiction to conduct any inquiry into this
quick to welcome back with eager arms its prodigal if repentant children. The return- matter, considering that the petition for quo warranto against him was not filed on
ing renegade must show, by an express and unequivocal act, the renewal of his time.
loyalty and love. It is noteworthy that this argument is based on the alleged tardiness not of the peti-
WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is tion itself but of the payment of the filing fee, which the petitioner contends was an
hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from indispensable requirement. The fee is, curiously enough, all of P300.00 only. This
serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to va- brings to mind the popular verse that for want of a horse the kingdom was lost. Still,
cate his office and surrender the same to the duly elected Vice-Governor of the said if it is shown that the petition was indeed filed beyond the reglementary period, there
province once this decision becomes final and executory. The temporary restraining is no question that this petition must be granted and the challenge abated.
order dated March 9, 1989, is LIFTED.
SO ORDERED.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City,
on January 20, 1988. The petition for quo warranto was filed by the private respond-
ent on January 26, 1988, but no filing fee was paid on that date. This fee was finally
paid on February 10, 1988, or twenty-one days after his proclamation. As the petition
by itself alone was ineffectual without the filing fee, it should be deemed filed only
when the fee was paid. This was done beyond the reglementary period provided for
under Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Mem-
ber of the Batasang Pambansa, regional, provincial, or city officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition
for quo warranto with the Commission within ten days after the proclamation of the
result of the election.
The petitioner adds that the payment of the filing fee is required under Rule 36, Sec-
tion 5, of the Procedural Rules of the COMELEC providing that —
Sec. 5. No petition for quo warranto shall be given due course without the payment
of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal re-
search fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment of the
filing fee is essential to the timeliness of the filling of the petition itself. He cites many
rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of time. In
fact he says, it was flied ahead of time. His point is that when he filed his "Petition
for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Re-
straining Order or Injunction" on January 26, 1988, the COMELEC treated it as a
pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket
fee was collected although it was offered. It was only on February 8, 1988, that the
COMELEC decided to treat his petition as solely for quo warranto and re-docketed
it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately
paid the filing fee on that date.
The private respondent argues further that during the period when the COMELEC
regarded his petition as a pre-proclamation controversy, the time for filing an election
protest or quo warranto proceeding was deemed suspended under Section 248 of
the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COME-
LEC Rules of Procedure cited by the petitioner, became effective only on November
15, 1988, seven days after publication of the said Rules in the Official Gazette pur-
suant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January
26,1988, when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not
require it, the payment of filing fees was still necessary under Res. No. 1996 and,
before that, Res. No. 1450 of the respondent COMELEC, promulgated on January
12, 1988, and February 26, 1980, respectively. To this, the private respondent coun-
ters that the latter resolution was intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections, which were supposed to be gov-
erned by the first-mentioned resolution. However, Res. No. 1996 took effect only on
March 3, 1988, following the lapse of seven days after its publication as required by
RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became
effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and
regulations promulgated by the Commission shall take effect on the seventh day
after their publication in the Official Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition
for quo warranto was filed on time. We agree with the respondents that the fee was
paid during the ten-day period as extended by the pendency of the petition when it
was treated by the COMELEC as a pre-proclamation proceeding which did not re-
quire the payment of a filing fee. At that, we reach this conclusion only on the as-
sumption that the requirement for the payment of the fees in quo warranto proceed-
ings was already effective. There is no record that Res. No. 1450 was even pub-
lished; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days
after its publication in the February 25, 1988 issues of the Manila Chronicle and the
Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions be-
came effective "immediately upon approval" simply because it was so provided
therein. We held in that case that publication was still necessary under the due pro-
cess clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever delay
there may have been is not imputable to the private respondent's fault or neglect. It
is true that in the Manchester Case, we required the timely payment of the filing fee
as a precondition for the timeliness of the filing of the case itself. In Sun Insurance
Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circum-
stances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case only
upon the payment of the prescribed filing fee. However, the court may allow the
payment of the said fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Pro-
cedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo war-
ranto should be dismissed for failure to pay the filing fee on time, the petitioner would
at the same time minimize his alleged lack of citizenship as "a futile technicality," It
is regrettable, to say the least, that the requirement of citizenship as a qualification
for public office can be so demeaned. What is worse is that it is regarded as an even
less important consideration than the reglementary period the petitioner insists upon.
This matter should normally end here as the sole issue originally raised by the peti-
tioner is the timeliness of the quo warranto proceedings against him. However, as
his citizenship is the subject of that proceeding, and considering the necessity for an
early resolution of that more important question clearly and urgently affecting the
public interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would appear
that our sole function in this proceeding should be to resolve the single issue of
whether or not the Court of Appeals erred in ruling that the motion for new trial of the
GSIS in question should indeed be deemed pro forma. But going over the extended
pleadings of both parties, the Court is immediately impressed that substantial justice
may not be timely achieved, if we should decide this case upon such a technical
ground alone. We have carefully read all the allegations and arguments of the par-
ties, very ably and comprehensively expounded by evidently knowledgeable and un-
usually competent counsel, and we feel we can better serve the interests of justice
by broadening the scope of our inquiry, for as the record before us stands, we see
that there is enough basis for us to end the basic controversy between the parties
here and now, dispensing, however, with procedural steps which would not anyway
affect substantially the merits of their respective claims. 6
xxx
While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the re-
spondent court to forward the case to the proper court which was the Court of Ap-
peals for appropriate action. Considering, however, the length of time that this case
has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112
SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Ap-
peals, (135 SCRA 37) which states:
... it is a cherished rule of procedure for this Court to always strive to settle the entire
controversy in a single proceeding leaving no root or branch to bear the seeds of
future litigation. No useful purpose will be served if this case is remanded to the trial
court only to have its decision raised again to the Intermediate Appellate Court and
from there to this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring
the case back to the Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable time has already
elapsed and, to serve the ends of justice, it is time that the controversy is finally laid
to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57;
Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chi-
gas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Ma-
bilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to accommodate the the-
ory which avoids waste of time, effort and expense, both to the parties and the gov-
ernment, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia,
92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the
dictates of justice so demand ... the Supreme Court should act, and act with finality.'
(Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and
U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this
Court act, and act with finality. 7
xxx
Remand of the case to the lower court for further reception of evidence is not nec-
essary where the court is in a position to resolve the dispute based on the records
before it. On many occasions, the Court, in the public interest and the expeditious
administration of justice, has resolved actions on the merits instead of remanding
them to the trial court for further proceedings, such as where the ends of justice
would not be subserved by the remand of the case or when public interest demands
an early disposition of the case or where the trial court had already received all the
evidence of the parties. 8
This course of action becomes all the more justified in the present case where, to
repeat for stress, it is claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly adopted
as "its own" private respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for quo warranto filed by
private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the merits of
this case.
Going over the record, we find that there are two administrative decisions on the
question of the petitioner's citizenship. The first was rendered by the Commission on
Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines.
10 The second was rendered by the Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not a citizen of the Philippines.
11
The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commis-
sioner Bacungan concurring in the dismissal of the petition "without prejudice to the
issue of the respondent's citizenship being raised anew in a proper case." Commis-
sioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring
decision until representations shall have been made with the Australian Embassy for
official verification of the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam Defensor-San-
tiago and Commissioners Alano and Geraldez of the Commission on Immigration
and Deportation. It is important to observe that in the proceeding before the COME-
LEC, there was no direct proof that the herein petitioner had been formally natural-
ized as a citizen of Australia. This conjecture, which was eventually rejected, was
merely inferred from the fact that he had married an Australian citizen, obtained an
Australian passport, and registered as an alien with the CID upon his return to this
country in 1980.
On the other hand, the decision of the CID took into account the official statement of
the Australian Government dated August 12, 1984, through its Consul in the Philip-
pines, that the petitioner was still an Australian citizen as of that date by reason of
his naturalization in 1976. That statement 12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a cer-
tificate of appointment signed and sealed by the Australian Minister of State for For-
eign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed
and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November
1983, do hereby provide the following statement in response to the subpoena Tes-
tificandum dated 9 April 1984 in regard to the Petition for disqualification against
RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the
statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
was not required to meet normal requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship must
take an oath of allegiance or make an affirmation of allegiance. The wording of the
oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of Section
50 of Australian Citizenship Act 1948 which relates to the giving of false or mislead-
ing information of a material nature in respect of an application for Australian citizen-
ship. If such a prosecution was successful, he could be deprived of Australian citi-
zenship under Section 21 of the Act.
F) There are two further ways in which LABO could divest himself of Australian citi-
zenship:
(i) He could make a declaration of Renunciation of Australian citizenship under Sec-
tion 18 of the Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary
act other than marriage, then he would automatically lose as Australian citizenship
under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF
THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE
AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that inquiry
made with the Australian Government through the Embassy of the Philippines in
Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian
reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the laws
of Australia and fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare
that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I will faith-
fully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above evidence. Neither does
he deny that he obtained Australian Passport No. 754705, which he used in coming
back to the Philippines in 1980, when he declared before the immigration authorities
that he was an alien and registered as such under Alien Certificate of Registration
No. B-323985. 16 He later asked for the change of his status from immigrant to a
returning former Philippine citizen and was granted Immigrant Certificate of Resi-
dence No. 223809. 17 He also categorically declared that he was a citizen of Australia
in a number of sworn statements voluntarily made by him and. even sought to avoid
the jurisdiction of the barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mis-
takes" that did not divest the petitioner of his citizenship, although, as earlier noted,
not all the members joined in this finding. We reject this ruling as totally baseless.
The petitioner is not an unlettered person who was not aware of the consequences
of his acts, let alone the fact that he was assisted by counsel when he performed
these acts.
The private respondent questions the motives of the COMELEC at that time and
stresses Labo's political affiliation with the party in power then, but we need not go
into that now.
There is also the claim that the decision can no longer be reversed because of the
doctrine of res judicata, but this too must be dismissed. This doctrine does not apply
to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it
does not appear that it was properly and seasonably pleaded, in a motion to dismiss
or in the answer, having been invoked only when the petitioner filed his reply 20 to
the private respondent's comment. Besides, one of the requisites of res judicata, to
wit, identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did not
automatically divest him of Philippine citizenship is irrelevant. There is no claim or
finding that he automatically ceased to be a Filipino because of that marriage. He
became a citizen of Australia because he was naturalized as such through a formal
and positive process, simplified in his case because he was married to an Australian
citizen. As a condition for such naturalization, he formally took the Oath of Allegiance
and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth
the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at worst only
a dual national and did not divest him of his Philippine citizenship. Such a specious
argument cannot stand against the clear provisions of CA No. 63, which enumerates
the modes by which Philippine citizenship may be lost. Among these are: (1) natu-
ralization in a foreign country; (2) express renunciation of citizenship; and (3) sub-
scribing to an oath of allegiance to support the Constitution or laws of a foreign coun-
try, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual alle-
giance of citizens is inimical to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia
was annulled after it was found that his marriage to the Australian citizen was biga-
mous, that circumstance alone did not automatically restore his Philippine citizen-
ship. His divestiture of Australian citizenship does not concern us here. That is a
matter between him and his adopted country. What we must consider is the fact that
he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been
subsequently rejected by Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reac-
quired by direct act of Congress, by naturalization, or by repatriation. It does not
appear in the record, nor does the petitioner claim, that he has reacquired Philippine
citizenship by any of these methods. He does not point to any judicial decree of
naturalization as to any statute directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD No. 725, providing that:
... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special Committee
on Naturalization created by Letter of Instruction No. 270, and, if their applications
are approved, taking the necessary oath of allegiance to the Republic of the Philip-
pines, after which they shall be deemed to have reacquired Philippine citizenship.
The Commission on Immigration and Deportation shall thereupon cancel their certif-
icate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his application
for the cancellation of his alien certificate of registration. And that is also the reason
we must deny his present claim for recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on January
18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under
the Constitution itself because of his alienage. 21 He was therefore ineligible as a
candidate for mayor of Baguio City, under Section 42 of the Local Government Code
providing in material part as follows:
Sec. 42. Qualifications. — An elective local official must be a citizen of the Philip-
pines, at least twenty-three years of age on election day, a qualified voter registered
as such in the barangay, municipality, city or province where he proposes to be
elected, a resident therein for at least one year at the time of the filing of his certificate
of candidacy, and able to read and write English, Filipino, or any other local language
or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that
should not frustrate the will of the electorate of Baguio City, who elected him by a
"resonant and thunderous majority." To be accurate, it was not as loud as all that,
for his lead over the second-placer was only about 2,100 votes. In any event, the
people of that locality could not have, even unanimously, changed the requirements
of the Local Government Code and the Constitution. The electorate had no power to
permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside
over them as mayor of their city. Only citizens of the Philippines have that privilege
over their countrymen.
The probability that many of those who voted for the petitioner may have done so in
the belief that he was qualified only strengthens the conclusion that the results of the
election cannot nullify the qualifications for the office now held by him. These quali-
fications are continuing requirements; once any of them is lost during incumbency,
title to the office itself is deemed forfeited. In the case at bar, the citizenship and
voting requirements were not subsequently lost but were not possessed at all in the
first place on the day of the election. The petitioner was disqualified from running as
mayor and, although elected, is not now qualified to serve as such.
Finally, there is the question of whether or not the private respondent, who filed the
quo warranto petition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on Elections 22
decided in 1985. In that case, the candidate who placed second was proclaimed
elected after the votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as stray. In effect, the second
placer won by default. That decision was supported by eight members of the Court
then 23 with three dissenting 24 and another two reserving their vote. 25 One was on
official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more
logical and democratic rule. That case, which reiterated the doctrine first announced
in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29
without any dissent, although one reserved his vote, 30 another took no part 31 and
two others were on leave. 32 There the Court held:
... it would be extremely repugnant to the basic concept of the constitutionally guar-
anteed right to suffrage if a candidate who has not acquired the majority or plurality
of votes is proclaimed a winner and imposed as the representative of a constituency,
the majority of which have positively declared through their ballots that they do not
choose him.
Sound policy dictates that public elective offices are filled by those who have re-
ceived the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)
The fact that the candidate who obtained the highest number of votes is later de-
clared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take pride in his status as
such and cherish this priceless gift that, out of more than a hundred other nationali-
ties, God has seen fit to grant him. Having been so endowed, he must not lightly
yield this precious advantage, rejecting it for another land that may offer him material
and other attractions that he may not find in his own country. To be sure, he has the
right to renounce the Philippines if he sees fit and transfer his allegiance to a state
with more allurements for him. 33 But having done so, he cannot expect to be wel-
comed back with open arms once his taste for his adopted country turns sour or he
is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its
renunciation. It may be restored only after the returning renegade makes a formal
act of re-dedication to the country he has abjured and he solemnly affirms once again
his total and exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of
the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of
Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-
Mayor of Baguio City, once this decision becomes final and executory. The tempo-
rary restraining order dated January 31, 1989, is LIFTED.
FIRST DIVISION
G.R. No. L-55151 March 17, 1981
DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING,
ANTONIO LIM and WILFREDO CABARDO, petitioners,
vs.
HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents.
MELENCIO-HERRERA, J.:
The principal issue raised in this certiorari petition with a prayer for a Writ of Prelim-
inary Injunction is whether or not respondent Judge committed grave abuse of dis-
cretion in issuing a Restraining Order, which had the effect of allowing private re-
spondent, Dominador B. Borje, to retain his position as member of the Board of Di-
rectors of the Misamis Occidental Electric Cooperative, Inc ., (MOELCI II)
Succintly stated, the pertinent facts follow:
Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director
for Cooperative Development, respectively, of the National Electrification Admin-
istration (NEA).
Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petition-
ers Ressurrection Inting, Antonio Lim and Wilfredo Cabardo, are members of its
Board of Directors.
Private respondent Dominador B. Borje, representing the North District of Ozamiz
City, was elected Director of MOELCI II, to hold office as such for three years starting
March 25, 1979.
Section 21 of Presidential Decree No. 269 (second paragraph) provides:
The provision of any law or regulation to the contrary notwithstanding, an officer or
employee of the government shag be eligible for membership in any cooperative if
he meets the qualifications therefor and he shall not be precluded from being elected
to or holding any Position therein, or from receiving such compensation or fee in
relation thereto as may be authorized by the by-laws; Provided That elective officers
of the government, except barrio captains and councilors, shall be ineligible to be-
come officers and/or directors of any cooperative, ... (emphasis supplied)
Section 3, Article IV of the By-laws of MOELCI II also explicitly states:
Section 3. Qualifications. ... No person shall be eligible to become or to remain a
Board member of the Cooperative who
xxx xxx xxx
(c) holds an elective office in the government above the level of a Barangay Captain
xxx xxx xxx
(emphasis supplied)
On 4 January 1980, private respondent filed his certificate of candidacy for the posi-
tion of member of the Sangguniang Panglunsod of Ozamiz City in the 30 January
1980 local elections.
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Mem-
orandum No. 18 to the effect that all officials and employees of electric cooperatives
who run for public office, win and assume office, shall be considered The Memoran-
dum was issued pursuant to the authority granted under PD No. 1645, amending PD
No. 269, reading.
10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise
of its power of supervision and control over electric cooperatives and other borrower,
supervised or control entities (Sec. 5, amending Sec. 10 of P.D. No. 269). 1
On January 1980, the NEA Deputy Administrator sent a telegram to the Acting Gen-
eral Manager of MOELCI II stating that should private respondent Borje be elected
to the Sangguniang Bayan, he shall be considered resigned from his position as
Director for the North District of Ozamiz City, Private respondent moved reconsider-
ation and requested that he be allowed to serve the unexpired term of his office in
accordance with PD No. 269. Reconsideration was denied by NEA on 7 February
1980.
On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus &
Construction of Legal Provisions with Preliminary Injunction and Damages" against
petitioners before the Court of First Instance of Misamis Occidental, Branch II (Spec.
Case No. 0511), seeking a declaration of entitlement to remain and to serve his un-
expired term as Director of MOELCI II until March, 1982.
On 3 March 1980, having won the election, private respondent assumed office and
began discharging his functions.
On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary
restraining Order commanding petitioners considering private respondent as re-
signed, and, instead, to snow him to retain his position as member of the Board of
Directors of MOELCI IIpending hearing. 2
Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of
cause of action and invoking section 21 of PD No. 269 (supra), section 3, Article IV
of the by laws OF MOELCI II(supra), as well as section 24 of PD No. 269 providing
that:
... The by-laws shall prescribe the number of directors their qualifications other than
those prescribed in this Decree, the manner of holding meetings of the board and of
electing successors to directors who shall resign, die or otherwise be incapable of
acting. The bylaws may also provide for the removal of directors from office and for
the election of their successors ...
On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, 3
only to restore it the next day, 25 March 1980. 4
In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners
stressed that NEA possessed the power and authority to promulgate Memorandum
No 18, and that, similarly, the Board of Directors of MOELCI IIhad the power to im-
plement the same under PD No. 269, as amended by PD 1645.
Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion
to Dismiss.
On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent
Judge, dated 25 March 1980, and dissolved the Restraining Order. 5
On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and
passed Resolution No. 121, S-80, implementing NEA Circular No. 18 and declaring
private respondent's position as member of the Board of Directors of MOELCI II va-
cant.
On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside
the Order of the vacation Judge, dated 8 May 1980, in effect reviving the Restraining
Order, on the ground that, as "councilor" of Ozamiz City, section 21 of PD No. 269
itself exempts private respondent from the prohibition imposed on elective officials
to become Directors of electric cooperatives. 6
Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor
General, advancing the view that Courts of First Instance have no jurisdiction to is-
sue a Restraining Order and that respondent Judge had committed grave abuse of
discretion in issuing the same.
On 10 October 1980 we required respondents to submit an Answer and issued a SO ORDERED.
Restraining Order enjoining respondents from enforcing the Order of the Court a quo
dated 6 June 1980 and from conducting further proceedings in the case below. Pri-
vate respondent Borje has filed his Answer, petitioners have submitted their Reply,
and on 2 February 1981, we resolved to give due course to the Petition and to con-
sider the case submitted for decision.
We find that respondent Judge gravely abused his discretion, amounting to lack of
jurisdiction, in issuing the various Restraining Orders, the last of which was dated 6
June 1980. Private respondent has shown no clear and explicit right to the position
of Director of MOELCI IIand is, therefore, not entitled to a Restraining Order, which
partook of the nature of a mandatory Injunction, commanding as it did that private
respondent be retained in his position as such Director. By having been elected
member of the Sangguniang Panglunsod of Ozamiz City, private respondent ren-
dered himself ineligible to continue serving as a Director of MOELCI IIby virtue of the
clear mandate of PD No. 269 providing that except for "barrio captains and counci-
lors", elective officials are ineligible to become officers and/or directors of any coop-
erative. It is clear to us that the term barrio modifies both captains and councilors.
Further, the MOELCI II, by-laws explicitly state that no person can remain a member
of the Board if he "holds an elective office above the level of barrio captain.
Private respondent's argument that PD 269 (sec. 21) does not prohibit Board mem-
bers of a cooperatives from continuing in their position prior to their election, and that
pursuant to section 24 of PD No. 269 he is entitled, as Director, to hold office for the
term for which he is erected and until his successor is elected and qualified," is un-
tenable. Eligibility to an office should be construed as of a continuing nature and
must exist at the commencement of the term and during occupancy of the office. The
fact that private respondent may have been qualified at the time he assumed the
Directorship is not sufficient to entitle him to continue holding office, if during the
continuance of his incumbency he ceases to be qualified. Private respondent was
qualified to become a director of MOELCI II at the time of the commencement of his
term, but his election as member of the Sangguniang Panglunsod of Ozamiz City,
and his subsequent assumption of office, disqualified him to continue as such.
Moreover, it should be recalled that when respondent Judge issued the Restraining
Order of 6 June 1980. NEA Memorandum Circular No. 18 had already been imple-
mented by the MOELCI Board in the latter's Resolution No. 121, passed on 10 May
1980, declaring the position of private respondent, as Director, vacant. Strictly
speaking, therefore, there was no longer any position which private respondent could
retain.
WHEREFORE, finding that respondent Judge acted with grave abuse of discretion
tantamount to lack of jurisdiction in issuing the Restraining Order, dated 6 June 1980,
the said Order is hereby annulled and set aside, and the Petition in Special Civil
Case No. 05IIof the Court below hereby ordered dismissed. The temporary Restrain-
ing Order heretofore issued by this Court is hereby made permanent. No pronounce-
ment as to costs.