EN BANC

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,

vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.

DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the Commission on Elections (Comelec) en
banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him
from running for the elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay
and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted
by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two
(2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following
the case of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby
suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall
operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed.
The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a
result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the
Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay.

The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc, the Resolution of
the First Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government Code provides that 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, are disqualified from running for any elective local position. 5 Since Moreno was released from
probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia
cited by Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and
disqualifications of elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their
sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as
an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he
is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct.

In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court in Dela
Torre v. Comelec 7 definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if
the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains totally
unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out material differences between his
case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec
involves a conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of Sec. 40(a) of the
Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only
after appealing his conviction, such that he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his
sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two (2) years after serving sentence" found in
Sec. 40(a) of the Local Government Code, which reads:

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; [Emphasis supplied.]
....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted
by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary
Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes,
and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2)
years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and
One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude
is not decisive of this case, the crucial issue being whether Moreno’s sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the
disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which
petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two (2)
years after serving sentence" should have been interpreted and understood to apply both to those who have been sentenced by final
judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by
one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec.
40(a) of the Local Government Code.

The Court’s declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be considered an
obiter in view of the fact that Dela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court
which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of
availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although
already eligible, did not at once apply for probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service of sentence," understood in its
general and common sense, means the confinement of a convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and unambiguous provision, however, has spawned
a controversy worthy of this Court’s attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage
of the law to include even those who did not serve a day of their sentence because they were granted probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having
been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty
of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which
required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period 11 imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the
Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, 12
the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions
prescribed in the probation order. 13

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Moreno’s
judgment of conviction attained finality upon his application for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code
unequivocally disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1)
year or more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which, we
reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office
because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides
that "[t]he final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and
to fully discharge his liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno was finally
discharged upon the court’s finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all
civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation, 14 our
conclusion will remain the same.
It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the phrase "service
of sentence," i.e., whether the legislature also meant to disqualify those who have been granted probation. The Court’s function, in the face
of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government Code. Interpretare et concordare
legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is
granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was
convicted. 15 Thus, the Probation Law lays out rather stringent standards regarding who are qualified for probation. For instance, it
provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than
six (6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have
been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became
applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year
or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify
probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat
probationers as a distinct class of offenders not covered by the disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years after Baclayon v.
Mutia was decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is
presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public office.
That it chose not to include probationers within the purview of the provision is a clear expression of the legislative will not to disqualify
probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While
the Local Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Probation
Law is a special legislation which applies only to probationers. It is a canon of statutory construction that a later statute, general in its terms
and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno, the
Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to run for Punong Barangay of
Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He
claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This
situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where he said
that "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms."

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution
of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET
ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs.

SO ORDERED.
 1. Mercado vs. Manzano 307 SCRA 630

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the
May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of
the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under §40(d) of the Local Government Code,
persons with dual citizenship are disqualified from running for any elective position. The COMELEC's Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-
Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based
on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a
Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, September 14, 1955, and is considered
in American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born a Filipino and a US citizen. In other words, he holds
dual citizenship.

The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he
eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local
position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor
of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained pending even until after the election held on
May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the
votes cast for vice mayor of Makati City but suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to
run for vice mayor of the City of Makati in the May 11, 1998 elections.5 The pertinent portions of the resolution of the COMELEC en banc
read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation
of the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the
time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His
parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of
allegiance to the United States.

It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of
1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had U.S.
citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent
Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three
thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third
place with fifty four thousand two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the
popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest
court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the
cancellation of the respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the
May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and
proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City. Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and
1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that,
effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of
Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano — whether petitioner Mercado his personality to
bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's
motion for leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that
petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. — Any person allowed to initiate an action or proceeding may, before or
during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he
has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise
of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original
parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a
defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had
already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner
came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner
had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v.
COMELEC,6 reiterated in several cases,7 only applies to cases in which the election of the respondent is contested, and the question is
whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a
"Motion for Leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was
precisely to have private respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160. If Ernesto
Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so
was petitioner since the latter was a rival candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a
right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from §6 of R.A. No. 6646,
otherwise known as the Electoral Reform Law of 1987, which provides:

Any candidate who his been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of action, inquiry,
or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final
judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying
petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition
properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private
respondent's alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is
disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local Government Code of 1991 (R.A. No. 7160),
which declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is
incorporated in the Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through
§40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance
to hold local elective office."

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered a national by the said states.9 For instance, such a situation
may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of
both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the
Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father's' country such children are
citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission
they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but
the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who
explained its necessity as follows: 10

. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas
Committee according to which a dual allegiance — and I reiterate a dual allegiance — is larger and more threatening than that of mere
double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or
of birth on foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all
know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600
chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, sponsor might recall, in Mainland
China in the People's Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia
including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At
that time, the Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos
but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of
thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural
resources.

Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some
of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of common knowledge in Manila.
It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider incorporating a new section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING
TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus: 11

. . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance
under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty
which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is
threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think
some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the People's
Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion
when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the
Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact
on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual
citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance." Consequently,
persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject
to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive
members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether she is considered a citizen of another
country is something completely beyond our control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens
and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between
Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to
run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but
his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to
repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person,
nevertheless, as a citizen? No one can renounce. There are such countries in the world.

SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be
considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose
mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other
citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate
of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is
the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships,
then he will probably fall under this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty" 14 of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a
citizen of the Philippines. In Parado v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he renounce, his loyalty to any other country or government
and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and
compiled with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies
within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department
of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of
Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to
require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at
all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the
Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth
at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that
now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that,
in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have
been made when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind
§349 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared unconstitutional by the
U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing
a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his
American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made
under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS
AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND
THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might
have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him
dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"
We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced
and had long abandoned his American citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim — when he
abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."

On this point, we quote from the assailed Resolution dated December 19, 1995:

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy
is insufficient to constitute renunciation that, to be effective, such renunciation should have been made upon private respondent reaching
the age of majority since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration
and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no
merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be
considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in
Aznar v. COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate staring he is
an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine
citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation,
either "express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he
does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his
American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth
and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no
doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-
Santiago, 19 we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen,
he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese
national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but
subsequently does some act constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1âwphi1.nêt

SO ORDERED.
 2. Rodriguez vs. Comelec, July 24, 1996

EDUARDO T. RODRIGUEZ, petitioner,

vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

FRANCISCO, J.:

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were
protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-
elected governor.

Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed
that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los
Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez
is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local
Government Code (R.A. 7160), so argued Marquez.

The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise
denied a reconsideration thereof.

Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No.
112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local
Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned).

In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now
appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that:

. . . , "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those
who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (. . .), and it
may be so conceded as expressing the general and ordinary connotation of the term. 1

Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task
was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch
conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit
Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on
Immigration showing that Rodriguez left the US on June 25, 1985 — roughly five (5) months prior to the institution of the criminal
complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ
Decision.

In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez
challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation
that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11,
1995 when Rodriguez' petition for certiorari (112889) — from where the April 18, 1995 MARQUEZ Decision sprung — was still
then pending before the Court.

On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution
for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two
(2) cases, the COMELEC explained that:

1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases

2. the parties, facts and issue involved are identical in both cases

3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from
justice"

4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the
two (2) cases is not procedurally flawed.

Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ
Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez'
documentary evidence consisting of

1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against
Rodriguez, and
2. an authenticated copy of the felony complaint

which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995
following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered
Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The
COMELEC thus made the following analysis:

The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against
the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The
Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was
being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be
deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his
disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a
clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any
attached document to show when he left the United States and when he returned to this country, facts upon which the
conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of
respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid
for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent. 2

And proceeding therefrom, the COMELEC, in the dispositive portion, declared:

WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered
disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is
ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon
Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set
aside.

At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor.

On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on
May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.

The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending
Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari(G.R. No. 120099) on May 16, 1995.

On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To
Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).

Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and
ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in
contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to
Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R.
No. 120099).

Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from
the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively).

As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995.

Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to
retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting
favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent
Motion to Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995
Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied.

In a Resolution dated October 24, 1995, the Court

. . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner
or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein
petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by
private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not
fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires,
introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule
33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have
the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice
hereof.
The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE
PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that
Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree
turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to
evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because
evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted
in the Los Angeles Court (November 12, 1985).

But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether
it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the
COMELEC's observations in full:

. . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid
punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that:

This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p.
399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137
SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific
Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary
connotation of the term.

But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not
explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a
"fugitive from justice" as:

(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was
committed or departs from his usual place of abode and conceals himself within the district. . . .

Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as:

. . . a person who, having committed or been charged with a crime in one state, has left its
jurisdiction and is found within the territory of another when it is sought to subject him to the
criminal process of the former state. (our emphasis)

In Hughes v. Pflanz, the term was defined as:

a person who, having committed within a state a crime, when sought for, to be subjected to
criminal process, is found within the territory of another state.

Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:

expression which refers to one having committed, or being accused, of a crime in one jurisdiction
and is absent for any reason from that jurisdiction.

Specifically, one who flees to avoid punishment . . . (emphasis ours)

From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a
person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction
of the court where said crime was committed or his usual place of abode.

Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere
commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet
the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction
for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification
for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being
that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he
was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of
sentence because he had jumped bail or escaped. The disqualification then is based on hisflight from justice."

Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is
inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their
pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court
held:

. . . it is not necessary that the party should have left the state or the judicial district where the
crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding
an anticipated prosecution, but that, having committed a crime within a state or district, he has left
and is found in another jurisdiction (emphasis supplied)
 Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language:

The simple fact that they (person who have committed crime within a state) are not within the state to answer its
criminal process when required renders them, in legal intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT
THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE
PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE".

From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on
whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is
to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the
spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so
as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid
yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it
most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to
respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the
law.

The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as
we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decisionand in the Court's October 24, 1995
Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive
from justice":

. . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to
avoid prosecution.

The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular
jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the
fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25,
1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and June 26 of 1995,4 preceded the filing of the
felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the
same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint
and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to
speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his
departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decisiondefinition, is just
nowhere to be found in the circumstances of Rodriguez.

With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S
EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally
formidable so as to merit their adoption as part of this decision, to wit:

It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This
was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87
inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the
sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to
its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive
or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest
of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-
publicized announcement to the perpetrators of the imminent filing of charges against them. And having been
forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private
respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal
consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law
is a material element in the definition of a fugitive.

The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed
cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of
events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at
hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently
proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the
political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the
country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the
more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and
precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began
serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was
elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992
and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless,
intensive and extensive activity of varied political campaigns — first against the Marcos government, then for the
 governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's
time to the demands of the office.

Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United
States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof.
While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a
person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good
faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed
against him while in the relative peace and service of his own country, the fact that he does not subject himself to the
jurisdiction of the former state does not qualify him outright as a fugitive from justice.

The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of
another state while already in his country or else be disqualified from office, is more apparent when applied in
petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner
has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In
the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the
precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's
exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to
unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought
him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed
against him.

Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his
circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary
burden and tedious process of defending himself before the country's courts?

It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the
performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive
from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing
of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a
particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his
departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the
Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner
automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the
country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have
gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without
jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical
quandary where he is compelled to violate the very functions of his office.

However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-
define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S.
vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the
jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of
his flight.

Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from
justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various
definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:

"Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that
whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same
case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which
such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330)

It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is
substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on
the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein.
(5 C.J.S. 1267)

In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has
remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to
such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below
has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a
second appeal.

As a general rule a decision on a prior appeal of the same case is held to be the law of the casewhether that decision
is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77).
 Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a
subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is
that all the facts in the case bearing on the point decided have received due consideration whether all or none of them
are mentioned in the opinion. (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are
involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the
Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the
COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore,
what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we
specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which
highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition,
seem to trivialize.

Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in
the MARQUEZ Decision.

To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any
elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given
in the MARQUEZ Decision, to wit:

A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those
who, after being charged, flee to avoid prosecution. (Emphasis ours.)

Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at
least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice"under this definition, Rodriguez
cannot be denied the Quezon Province gubernatorial post.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC
dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23,
1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to
explain why they should not be cited in contempt) are SET ASIDE.

SO ORDERED.

3. Condon vs. Comelec, August 10, 2012

EN BANC

G.R. No. 198742 August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents.

SERENO,*

PERLAS-BERNABE, JJ *

DECISION

REYES, J.:

Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual
citizen ineligible to run for and thus hold any elective public office.

The Case

At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution 2 dated September 6, 2011 of
the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order 3 dated
November 30, 2010 of COMELEC Second Division dismissing petitioner’s appeal; and (b) affirmed the consolidated Decision4 dated
October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon
(petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.

The Undisputed Facts

The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she
became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.

On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia
pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application
was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005.

On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of
Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she has
ceased to be an Australian citizen.6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective office
during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed
as the winning candidate. She took her oath of office on May 13, 2010.

Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan 7 and Luis M. Bautista,8 (private respondents) all registered
voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioner’s eligibility before the RTC. The petitions
similarly sought the petitioner’s disqualification from holding her elective post on the ground that she is a dual citizen and that she failed to
execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as
imposed by Section 5(2) of R.A. No. 9225.

The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She claimed
that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5(2), R.A. No.
9225 and that her act of running for public office is a clear abandonment of her Australian citizenship.

Ruling of the RTC

In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner’s failure to comply with Section 5(2) of R.A. No.
9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration of
renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the renunciation of foreign
citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTC’s decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner):

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba, La
Union;

2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and

3) DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED.9

Ruling of the COMELEC

The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order 10 dated November 30, 2010 for
failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the COMELEC en
banc in its Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given due course. The
COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending Appeal filed
by the private respondents.

The decretal portion of the resolution reads:

WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows:

1. To DISMISS the instant appeal for lack of merit;

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and

3. To GRANT the Motion for Execution filed on November 12, 2010.

SO ORDERED.12 (Emphasis supplied)

Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.

The Petitioner’s Arguments

The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship and
was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn
renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her.

She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions of
the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the
precursor of R.A. No. 9225.

She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed certificates of
candidacy for the 2007 and 2010 elections.

Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of
remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution
pending appeal of the RTC’s judgment.

The Issues

Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its
reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case; III)
Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of determining the
petitioner’s eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is a
mere pro-forma requirement.

The Court’s Ruling

I. An appeal may be simultaneously

reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.

The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of
the Constitution, viz:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:

Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions
on interlocutory orders of the division which shall be resolved by the division which issued the order.

Considering that the above cited provisos do not set any limits to the COMELEC en banc’s prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its
reinstatement instead of remanding the same to the division that initially dismissed it.

We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide the
substantive merits of the petitioner’s appeal after ruling for its reinstatement.

Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments on
the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching
therewith supporting documents13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an
unfavorable decision, cannot be permitted to disavow the en banc’s exercise of discretion on the substantial merits of her appeal when she
herself invoked the same in the first place.

The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a
precedent to the disposition of the petitioner’s appeal. A decision or resolution of any adjudicating body can be disposed in several ways.
To sustain petitioner’s argument would be virtually putting a straightjacket on the COMELEC en banc’s adjudicatory powers.

More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the
rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure. 14

II. The COMELEC en banc has the

power to order discretionary
execution of judgment.
We cannot subscribe to petitioner’s submission that the COMELEC en banc has no power to order the issuance of a writ of execution and
that such function belongs only to the court of origin.

There is no reason to dispute the COMELEC’s authority to order discretionary execution of judgment in view of the fact that the suppletory
application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure. 15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has lost
jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis-à-vis election cases when we held that judgments in election
cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC whether in the
exercise of its original or appellate jurisdiction.

III. Private respondents are not

estopped from questioning
petitioner’s eligibility to hold public
office.

The fact that the petitioner’s qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections cannot
operate as an estoppel to the petition for quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the qualifications of
a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of
the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member 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 results of the election. (Emphasis ours)

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day period
prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him completely helpless as
he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253 of the Omnibus Election Code. 17

The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code
cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253.

IV. Petitioner is disqualified from

running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine
citizenship18 by taking an oath of allegiance to the Republic, thus:

Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.

The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and all civil and political rights and obligations
concomitant therewith, subject to certain conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic
Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly
constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they
took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in
such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized
citizens. (Emphasis ours)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an Oath of
Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine.

On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in
Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation
of foreign citizenship must be sworn before an officer authorized to administer oath.

To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of any and
all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature. She anchors her
submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No.
9225.

At the outset, it bears stressing that the Court’s duty to interpret the law according to its true intent is exercised only when the law is
ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and free
from any doubt, there is no occasion for construction or interpretation; there is only room for application. 19 Section 5(2) of R.A. No. 9225 is
one such instance.

Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more
things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings. 20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, 21 we declared its categorical and single meaning: a
Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a
renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation
and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to
administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.

The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their Philippine citizenship
under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus:

The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who
reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer
an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country,
but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and
(2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship)
requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they
have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the
discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18
August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor
explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship;

xxxx

The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to
take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely,
Philippine citizenship.23 (Citation omitted and italics and underlining ours)

Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the position of vice-mayor for his
failure to make a personal and sworn renunciation of his American citizenship.

We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The language of
the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read literally.25 The foreign
citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath.

It is conclusively presumed to be the meaning that the Legislature has intended to convey. 26 Even a resort to the Journal of the House of
Representatives invoked by the petitioner leads to the same inference, viz:

INTERPELLATION OF REP. JAVIER

Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized Filipinos.

Rep. Libanan replied in the affirmative.

Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship shall
continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run for public office
provided that they renounce their foreign citizenship.

Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of foreign
citizenship before any authorized public officer.

Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino
citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign
citizenship if and when they run for public office. He thereafter proposed to delete this particular provision.

In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining to
the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a
naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.

Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his foreign
citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship. He pointed out
further that this is a contradiction in the Bill.

Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire their
Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be considered qualified
to run for the highest elective positions in the country.

Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign citizenship
and that they comply with the residency and registration requirements as provided for in the Constitution.

Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without
having to perform an act to complete or perfect his/her citizenship.

Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help
Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the
Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of public
officers.

In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma
requirement.

On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have
reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the
presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen is
one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has
acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by
election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as natural-
born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they should be
considered as repatriated citizens.

In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter’s comments on the matter. He however stressed
that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the status of
being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to reacquire their
Filipino citizenship.

Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her
repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ).

Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born. He
reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty should not
be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He underscored
that this will in a way allow such Filipinos to enjoy dual citizenship.

On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat
the purpose of the Bill.

Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain
their Filipino citizenship, will be considered as repatriated citizens.

Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not
considered as natural-born citizens.

In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution and
who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens.

In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of one’s original nationality and only
naturalized citizens are not considered as natural-born citizens.

On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens who
acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter. 27

The petitioner obviously espouses an isolated reading of Representative Javier’s statement; she conveniently disregards the preceding
and succeeding discussions in the records.

The above-quoted excerpts of the legislative record show that Representative Javier’s statement ought to be understood within the context
of the issue then being discussed, that is – whether former natural-born citizens who re-acquire their Filipino citizenship under the
proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions reserved only
to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.

It was Representative Javier’s position that they should be considered as repatriated Filipinos and not as natural-born citizens since they
will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who need not perform an act
to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as natural-born
citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who need not perform
any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as a
mere pro forma requirement.

Petitioner’s argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement only
with respect to the re-acquisition of one’s status as a natural-born Filipino so as to override the effect of the principle that natural-born
citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this
Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an unsworn
affidavit of renunciation.

It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public
officers’ primary accountability of allegiance and loyalty, which provides:

Sec. 18. – Public officers and employees owe the State and this Constitution allegiance 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.

An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one
will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken.
The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officer’s
abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere
qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise.

Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled
to judicial notice. We disagree.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. 29 To prove a foreign law, the party
invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office
in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general,
consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. (Emphasis ours)

Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of the evidence, the
attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the
seal of such court.

The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through:
(1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he
quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in
several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition
of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of
all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of decisions, mere
authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that
law.30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As uniformly observed by the RTC
and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian
government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted
judiciously in disregarding the same.

We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a
Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioner’s
motion for reconsideration.

We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v.
Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship.

This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the
latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of
R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen
encroachment upon the sovereign will and power of the people of this Republic.32

The petitioner’s act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While this
Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003
which provides for the additional condition of a personal and sworn renunciation of foreign citizenship. 34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate
the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a
matter of popularity.35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a
personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing
of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all those who have re-acquired their
Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the
exercise of the right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under
Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith
in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed
on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of
her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto.

SO ORDERED.

4. Jalosjos vs. Comelec, October 9, 2012

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, Respondents.

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 Resolution 2 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 (Cardino) 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 vacancy 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 candidacy 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 sentence. 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 order 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 issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio 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 Administrator 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 subsequently utilized by the
said probationer as basis of the Urgent Motion for Reconsideration 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 probationer and became the basis for the Commission on Elections to deny in
its Resolution 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 Dapitan 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 cancelled Jalosjos’ certificate of candidacy. The COMELEC
First Division concluded that "Jalosjos has indeed committed material misrepresentation in his certificate of candidacy 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 correccional as minimum, to four years, two months and one day of prisión mayor as
maximum. 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 reconsideration. 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 convicted 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 DISMISSED. 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 Reconsideration10 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 consequences 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 elections.

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’ certificate of candidacy without making a finding that Jalosjos committed a deliberate
misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous 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 conviction 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’ certificate of candidacy being void ab initio,
Cardino, as the only qualified candidate, actually 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 disqualification 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 profession 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
certificate 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
Section 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 Republic;

(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 authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty 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
plenary 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) 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 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 paragraphs 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, profession 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 disqualification 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 although pardoned as
to the principal penalty, unless the same shall have been expressly 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 disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification
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 temporary 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 disqualification 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 disqualification 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 appellee’s conviction of a crime penalized with prisión
mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification 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
sentenced 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 penalty 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 during 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 disqualification 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
because 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. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "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 penalty does not depend on the duration of the principal penalty, or on whether the convict 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 perpetual 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 becomes 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 disqualification 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, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications 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 empowered 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 proclamation, 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 offenses 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 provided 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 offenses 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 declared:

The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated 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 statements: (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 immigrant 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
Constitution 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 representation 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 disqualification 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 representation 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
Section 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 certificate 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 to valid
votes.21 Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of
candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid
candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his
certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed.
There was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest number of votes.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared
ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently
had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of
candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a
candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-
candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of
the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. 23 If a certificate of candidacy void ab initio is
cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy
is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of
candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of
candidacy for the same position.

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 accessory 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 disqualification 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 of a competent court, is part of the
enforcement and administration of "all laws" relating to the conduct of elections.

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special
disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification,
Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer
all laws" relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual
special disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The
Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA
No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus
received the highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City Board of Canvassers
to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte.

Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and Local Government
so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery
in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.

SO ORDERED.

5. Flores vs. Drilon. G.R. No. 104732, June 22, 1993

G.R. No. 104732. June 22, 1993.]

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, Petitioners, v. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, Respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

DECISION

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under
which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay
Metropolitan Authority (SMBA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenses
attached to the office . . . ." 2 Paragraph (d) reads—

"(d) Chairman/Administrator — The President shall appoint a professional manager as administrator of the Subic Authority with a
compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex officio chairman of the
Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations
from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the
Subic Authority" (Emphasis supplied).

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

"Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . . (g) Appointment of new employees, creation of new
position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days before a
special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or
casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority
sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may
be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three
days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government
official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those
in government-owned or controlled corporations . . . ."cralaw virtua1aw library

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992
was within the prohibited 45-day period prior to the 11 May 1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of
its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other
government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:jgc:chanrobles.com.ph

"No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

"Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment
in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries."cralaw virtua1aw library

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee
may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time
job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary,
G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6."
. . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . ."cralaw virtua1aw library

Particularly as regards the first paragraph of Sec. 7," (t)he basic idea really is to prevent a situation where a local elective official will work
for his appointment in an executive position in government, and thus neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other
government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional
proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first part., Art. IX-B,
of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is
of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so
allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since
the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on
its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.chanroblesvirtuallawlibrary

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office,
ignores the clear-out difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second
paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position,
the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an
elective official to other government posts, except as are particularly recognized in the Constitution itself, e.g., the President as head of the
economic and planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who
may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It
was purposely sought by the drafters of the Constitution as shown in their deliberation, thus —

"MR. MONSOD.

In other words, what the Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials,
because in the case of appointive officials, there may be a law that will allow them to hold other positions.

"MR. FOZ.

Yes. I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should
allow them to hold some other positions." 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials
who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance,
citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of any other office or
employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials
concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or
automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed"
unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it
been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and,
instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they
nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been
concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.chanroblesvirtuallawlibrary:red

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the
Conference Committee just said ‘the Mayor shall be the Chairman’ then that should foreclose the issue. It is a legislative choice." 15 The
Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress
attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon
this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument
that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the
constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective
official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the
Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the
compensation attached to the cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the
President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice
under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is" [t]he designation of a person, by the person or persons having authority therefor, to discharge the
duties of some office or trust," 17 or" [t]he selection or designation of a person, by the person or persons having authority therefor, to fill an
office or public function and discharge the duties of the same." 18 In his treatise, Philippine Political Law, 19 Senior Associate Justice
Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the
functions of a given office."cralaw virtua1aw library

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., 20
"the choice of a person to fill an office constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an" [a]pointment
to office is intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court 23 we held:chanrob1es virtual 1aw library

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to
his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power . . . ."cralaw virtua1aw library

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

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

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

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

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however
resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment.
The deliberation in the Constitutional Commission is enlightening:jgc:chanrobles.com.ph

"MR. DAVIDE.

On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.

"MR. FOZ.

The effect of the proposed amendment is to make possible for one to resign from his position.

"MR. DAVIDE.

Yes, we should allow that prerogative.

"MR. FOZ.

Resign from his position to accept an executive position.

"MR. DAVIDE.

Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being
appointed within the term for which he was elected, we may be depriving the government of the needed expertise of an
individual."25cralaw:red

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.chanrobles law
library : red

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

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

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

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

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

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

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the
raging of the waves. "30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical
change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with
ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-
advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations
from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the
Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent
Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive
Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA
are hereby UPHELD.

SO ORDERED.

6. National Amnesty Commission vs. COA, G.R. No. 156982, Sept. 8, 2004
G. R. No. 156982 September 8, 2004

NATIONAL AMNESTY COMMISSION, petitioner,

vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and ERNESTO C. EULALIA, Resident
Auditor, National Amnesty Commission. respondents.

DECISION

CORONA, J.:

This petition for review1 seeks to annul the two decisions of respondent Commission on Audit (COA)2 dated July 26, 20013 and January 30,
2003,4 affirming the September 21, 1998 ruling5 of the National Government Audit Office (NGAO). The latter in turn upheld Auditor Ernesto
C. Eulalia's order disallowing the payment of honoraria to the representatives of petitioner's ex officio members, per COA Memorandum
No. 97-038.

Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President Fidel V. Ramos
through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of seven members:
a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local
Government as ex officiomembers.6

It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their
representatives who were paid honoraria beginning December 12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia
disallowed on audit the payment of honoraria to these representatives amounting to ₱255,750 for the period December 12, 1994 to June
27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO upheld the auditor's order and notices of
disallowance were subsequently issued to the following:7

REPRESENTATIVES AMOUNT
1. Cesar Averilla
Department of National Defense ₱ 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
3. Cielito Mindaro,
Department of Justice 18,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior And Local Government 71,250.00
6. Stephen Villaflor
Department of the Interior and Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00

₱255,750.00

Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of Proclamation
No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides:

Section 1, Composition - The NAC shall be composed of seven (7) members:

a) A Chairperson who shall be appointed by the President;

b) Three (3) Commissioners who shall be appointed by the President;

c) Three (3) Ex-officio Members

1. Secretary of Justice

2. Secretary of National Defense

3. Secretary of the Interior and Local Government

 The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled
to per diems, allowances, bonuses and other benefits as may be authorized by law.(Emphasis supplied)

Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing
payment of honoraria to the ex officio members' representatives, to no avail.

Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of discretion in: (1)
implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code; (2) invoking
paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum; (3)
applying the Memorandum to the NAC ex officio members' representatives who were all appointive officials with ranks below that of an
Assistant Secretary; (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2
null and void, and (5) disallowing the payment of honoraria on the ground of lack of authority of representatives to attend the NAC
meetings in behalf of the ex officio members.8

We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that there is no legal basis to grant per
diem, honoraria or any allowance whatsoever to the NAC ex officio members' official representatives.

The Constitution mandates the Commission on Audit to ensure that the funds and properties of the government are validly, efficiently and
conscientiously used. Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive and broad auditing powers over all
government entities or trustees, without any exception:

Section 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and
controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that
have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the government, which are required by law of the granting institution to submit to
such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate,
the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to
correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and
examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules
and regulations, including those for the prevention and disallowance of irregular, unnecessary, inexpensive,
extravagant, or unconscionable expenditures, or uses of government funds and properties.

Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the Commission on Audit. (Emphasis supplied).

It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on September 19, 1997:

COMMISSION ON AUDIT MEMORANDUM NO. 97-038

SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of Public Officers and
Investigations and Committee on Civil Service and Government Reorganization.

The Commission received a copy of Senate Committee Report No. 509 urging the Commission on Audit to immediately cause
the disallowance of any payment of any form of additional compensation or remuneration to cabinet secretaries, their
deputies and assistants, or their representatives, in violation of the rule on multiple positions, and to effect the refund
of any and all such additional compensation given to and received by the officials concerned, or their representatives,
from the time of the finality of the Supreme Court ruling in Civil Liberties Union v. Executive Secretary to the present. In
the Civil Liberties Union case, the Supreme Court ruled that Cabinet Secretaries, their deputies and assistants may not
hold any other office or employment. It declared Executive Order 284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold other offices in addition to their primary office and to receive
compensation therefor. The said decisionbecame final and executory on August 19, 1991.

In view thereof, all unit heads/auditors/team leaders of the national government agencies and government owned or controlled
corporations which have effected payment of subject allowances, are directed to implement the recommendation contained in
the subject Senate Committee Report by undertaking the following audit action:

1. On accounts that have not been audited and settled under certificate of settlements and balances on record
from August 19, 1991 to present - to immediately issue the Notices of disallowance and corresponding
certificate of settlements and balances.

2. On accounts that have been audited and settled under certificate of settlements and balances on record - to review
and re-open said accounts, issue the corresponding notices of disallowance, and certify a new balance thereon. It is
 understood that the re-opening of accounts shall be limited to those that were settled within the prescriptive
period of three (3) years prescribed in Section 52 of P.D. 1445.

3. On disallowances previously made on these accounts - to submit a report on the status of the disallowances
indicating whether those have been refunded/settled or have become final and executory and the latest action taken by
the Auditor thereon.

All auditors concerned shall ensure that all documents evidencing the disallowed payments are kept intact on file in their
respective offices.

Any problem/issue arising from the implementation of this Memorandum shall be brought promptly to the attention of the
Committee created under COA Officer Order No. 97-698 thru the Director concerned, for immediate resolution.

An initial report on the implementation of this Memorandum shall be submitted to the Directors concerned not later than October
31, 1997. Thereafter, a quarterly progress report on the status of disallowances made shall be submitted, until all the
disallowances shall have been enforced.

The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall supervise the implementation of
this Memorandum which shall take effect immediately and shall submit a consolidated report thereon in response to the
recommendation of the Senate Committee on Accountability of Public Officers and Investigation and Committee on Civil Service
and Government Reorganization.9 (Emphasis supplied)

Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication required by Article 2
of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such publication.

We clarified this publication requirement in Tañada vs. Tuvera:10

[A]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. (Emphasis supplied.)

COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not need publication to
be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its auditors to enforce
the self-executing prohibition imposed by Section 13, Article VII of the Constitution on the President and his official family, their deputies
and assistants, or their representatives from holding multiple offices and receiving double compensation.

Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to categorically explain this constitutional
prohibition in Civil Liberties Union vs. The Executive Secretary:11

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein
imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:

"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly
or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office."

xxx xxx xxx

[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par.
(2), Article IX-B which, for easy reference is quoted anew, thus:"Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."
 We rule in the negative.

xxx xxx xxx

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against
the holding of multiple offices or employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise provided in the Constitution itself.

xxx xxx xxx

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the
Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. . . .

xxx xxx xxx

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

xxx xxx xxx

[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned
official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio
likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or
authority than that conferred by the office." An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment. To illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail
Transit Authority.

xxx xxx xxx

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

xxx xxx xxx

…[E]x-officio posts held by the executive official concerned without additional compensation as provided by law and as
required by the primary functions of his office do not fall under the definition of "any other office" within the
contemplation of the constitutional prohibition... (Emphasis supplied).

Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties Union doctrine, form part of our legal
system.12 Supreme Court decisions assume the same authority as valid statutes.13 The Court's interpretation of the law is part of that law
as of the date of enactment because its interpretation merely establishes the contemporary legislative intent that the construed law
purports to carry into effect.14

COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual, except those
provided for under the Constitution. Hence, publication of said Memorandum is not required for it to be valid, effective and enforceable.

In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple positions in the government and
receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against
holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter
prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or
financial interest, whether government or private, unless allowed by the Constitution.
The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two
constitutional prohibitions.

First, the NAC ex officio members' representatives are not exempt from the general prohibition because there is no law or administrative
order creating a new office or position and authorizing additional compensation therefor.

Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government
and receiving additional or double compensation:

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

xxx xxx xxx

(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

xxx xxx xxx

SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall receive additional or
double compensation unless specifically authorized by law nor accept without the consent of the President, any present,
emolument, office, or title of any kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect compensation.

RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.

The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation from the ex
officio members who were themselves also designated as such.

There is a considerable difference between an appointment and designation. An appointment is the selection by the proper authority of an
individual who is to exercise the powers and functions of a given office; a designation merely connotes an imposition of additional duties,
usually by law, upon a person already in the public service by virtue of an earlier appointment.15

Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to
the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an
employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position, 16 and not a mere
designation.

Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on the President and his
official family.

Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and assistants, who hold positions in ex
officio capacities, are proscribed from receiving additional compensation because their services are already paid for and covered by the
compensation attached to their principal offices. Thus, in the attendance of the NAC meetings, the ex officio members were not entitled to,
and were in fact prohibited from, collecting extra compensation, whether it was called per diem, honorarium, allowance or some other
euphemism. Such additional compensation is prohibited by the Constitution.

Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the payment of honoraria and per diems to
the officers concerned who sat as ex officio members or alternates. The agent, alternate or representative cannot have a better right than
his principal, the ex officio member. The laws, rules, prohibitions or restrictions that cover the ex officio member apply with equal force to
his representative. In short, since the ex officio member is prohibited from receiving additional compensation for a position held in an ex
officio capacity, so is his representative likewise restricted.

The Court also finds that the re-opening of the NAC accounts within three years after its settlement is within COA's jurisdiction under
Section 52 of Presidential Decree No. 1445, promulgated on June 11, 1978:

SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of three years after the settlement
of any account by an auditor, the Commission may motu propio review and revise the account or settlement and certify a new
balance.

More importantly, the Government is never estopped by the mistake or error on the part of its agents. 19 Erroneous application and
enforcement of the law by public officers do not preclude subsequent corrective application of the statute.

In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that:
 Petitioner further contends that with the new IRR issued by the NAC authorizing the ex-officio members to designate
representatives to attend commission meetings and entitling them to receive per diems, honoraria and other allowances, there is
now no legal impediment since it was approved by the President. This Commission begs to disagree. Said provision in the new
IRR is null and void for having been promulgated in excess of its rule-making authority. Proclamation No. 347, the presidential
issuance creating the NAC, makes no mention that representatives of ex-officio members can take the place of said ex-officio
members during its meetings and can receive per diems and allowances. This being the case, the NAC, in the exercise of its
quasi-legislative powers, cannot add, expand or enlarge the provisions of the issuance it seeks to implement without committing
an ultra vires act.20

We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that:

The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per
diems, allowances, bonuses and other benefits as may be authorized by law. (Emphasis supplied).

The problem lies not in the administrative order but how the NAC and the COA interpreted it.

First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law, that is,
the Constitution, statutes and judicial decisions. However, as already discussed, the payment of such allowances is not allowed, prohibited
even.

Second, the administrative order merely allows the ex officio members to designate their representatives to NAC meetings but not to
decide for them while attending such meetings. Section 4 of the administrative order categorically states:

Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum consisting of at least four
members.

Thus, although the administrative order does not preclude the representatives from attending the NAC meetings, they may do so
only as guests or witnesses to the proceedings. They cannot substitute for the ex officio members for purposes of determining
quorum, participating in deliberations and making decisions.

Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are entitled to allowances, pursuant to
our pronouncement in Civil Liberties Union:

"where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees
and other compensation attached to the office."

A de facto officer "derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face. (He is) one who is in possession of an office and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a
mere volunteer."21

The representatives cannot be considered de facto officers because they were not appointed but were merely designated to act as such.
Furthermore, they are not entitled to something their own principals are prohibited from receiving. Neither can they claim good faith, given
the express prohibition of the Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such allowances.

WHEREFORE the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

7. Civil Liberties Union vs. Executive Secretary, 194 SCRA 317

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

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

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and
Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY 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; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and
Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and
Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D.
REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and
SOLITA MONSOD, as Head of the National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of
the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than
two positions in the government and government corporations and receive the corresponding compensation therefor; Provided,
that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department
holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the
subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary
position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third
(1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein
imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly
or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other
public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure. In addition to seeking a
declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No.
83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public
respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or
benefits that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing"
provision of the 1987 Constitution, then Secretary of Justice Sedfrey 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
(undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations:
(a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial
and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before
Congress convened on July 27, 1987: promulgated Executive Order No. 284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped
together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public officers –– one, the President and her official family,
and the other, public servants in general –– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to lead by example."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 appointive official shall hold any other office or
employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ
Opinion No. 129, series of 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
appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed
by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in
the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds
exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless
otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those
provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2),
Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to
officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article
VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants
from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of
Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the
other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7,
par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2),
Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that
the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that purpose.11

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

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

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

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.

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

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

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or
employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of
Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official
family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice
any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are
not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because
they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in
their case."14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their
tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to
the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents
would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a
stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other
offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to
when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of
civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation
applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for
appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless
otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act as
President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify.16 Such absurd
consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section
7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to
be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to
effectuate the great purposes of the instrument.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 allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and nugatory.20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended
to be a positive and unequivocal negation.21 The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-officiomember of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however,
be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-
officio capacity as provided by law and as required22 by the primary functions of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President
of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither
can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local
Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the
Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and
guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and assistant
secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of
money, banking and credit.25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously
operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided.26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation
in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-
officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred by the office." 27 An ex-officio member of a board
is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-officioChairman of the Board of the Philippine Ports
Authority,29 and the Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection
Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board
to qualify they need only be designated by the respective department heads. With the exception of the representative from the private
sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for
instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative
from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as
it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under
their original appointments."32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural.33 The additional duties must not only be closely related to, but must be required by the
official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and
Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the
Maritime Industry Authority34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the
primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the
Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary
compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not
inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their
respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy
direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of
executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent
with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus
and offices and to ensure that the laws are faithfully executed.35 Without these additional duties and functions being assigned to the
President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-
officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for
control and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13,
Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned,
who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right
to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal
office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance,
therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or
some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2),
Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his
position,"36 express reference to certain high-ranking appointive public officials like members of the Cabinet were made. 37 Responding to a
query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of said officials' primary
functions. The example given by Commissioner Monsod was the Minister of Trade and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties
flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under
consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This
colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section
3 of Committee Resolution No. 531 which was the proposed article on General Provisions.39 At that time, the article on the Civil Service
Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the draft
Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific
constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and
delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of
Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles
governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made
it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not
constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President,
members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government,
except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation
in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then
called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution,
Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government
and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention
of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the
1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated
under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices
held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With
respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being
head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and
expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his
duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural
Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or
employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With
respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions
complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for
actual services rendered.46 It has been held that "in cases where there is no de jure,officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all
liability to pay any one for such services.47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and
void and is accordingly set aside.

SO ORDERED.

8. Tan and Luzuriaga vs. Valeriano, G.R. No. 185559, August 2, 2017

G.R. No. 185559

JOSE G. TAN and ORENCIO C. LUZURIAGA, Petitioner,

vs.
ROMEO H. VALERIANO,, Respondent.

DECISION

MARTIRES, J.:

For resolution is the Petition for Review on Certiorari,1 docketed as G.R. No. 185559, assailing the 25 September 2008 Decision2 and the 5
December 2008 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 88795.

THE FACTS
The present case arose from a damages suit for malicious prosecution filed by respondent Romeo H. Valeriano (Valeriano) against
petitioners Jose G. Tan, and Orencio C. Luzuriaga (petitioners), as well as Toby Gonzales (Gonzales) and Antonio G. Gil an a (Gilana).4

It is undisputed that on 4 January 2001, the Holy Name Society of Bulan, Sorsogon (Holy Name Society), held a multi-sectoral consultative
conference at the Bulan Parish Compound. Valeriano, the president of the religious organization, delivered a welcome address during the
conference. In his address, Valeriano allegedly lambasted certain local officials of Bulan, Sorsogon, specifically Municipal Councilors
petitioners, Gilana and ViceMayor Gonzales.

The following day, or on 5 January 2001, petitioners, together with Gilana and Gonzales, filed before the Civil Service
Commission (CSC) an administrative complaint against Valeriano who was an incumbent resident auditor of the Commission on
Audit (COA). Believing that the real purpose of the conference was to choose the candidates who will be endorsed by the Holy Name
Society for the 2001 elections, petitioners, Gilana and Gonzales, charged Valeriano with acts of electioneering and engaging in partisan
politics. They were convinced that, through his opening remarks, Valeriano had set the political tone of the conference. They also claimed
that Valeriano did not advise or prevent the other speakers from criticizing the local administration with which they are politically aligned or
identified.5

The COA was furnished with a copy of the administrative complaint against Valeriano. The COA, however, did not take any action on the
complaint in view of the pendency of the case before the CSC.6

On 30 January 2001, the CSC dismissed the complaint due to a procedural defect, but without prejudice to its re-filing.7 The CSC noted
that the complaint-affidavit was not filed under oath.

The petitioners subsequently re-filed a Complaint-Affidavit8 dated 23 March 2001 before the CSC. On motion of their counsel, however, the
petitioners withdrew their complaint on 15 June 2001.9

In the meantime, the petitioners and Gilana filed on 22 March 2001 another administrative complaint 10dated 13 March 2001 before the
Office of the Ombudsman, this time for violation of Republic Act No. 6713,11 in relation to Section 55 of the Revised Administrative Code of
1987. This complaint was dismissed by the Ombudsman on 21 June 2001 for want of evidence.12

Aggrieved by the turn of events, Valeriano filed before Branch 65, Regional Trial Court (RTC),Sorsogon City, a complaint for damages
against the petitioners.

The Ruling of the Regional Trial Court

After weighing the evidence, the R TC ruled that the act of filing of numerous cases against Valeriano by petitioners, Gilana, and Gonzales
was attended by malice, vindictiveness, and bad faith.13 The RTC observed that Valeriano earned the ire of petitioners, Gilana, and
Gonzales because he was the one who organized and led the sponsorship of the Multi-Sectoral Consultative Conference which was
attended by some opposition leaders who were allowed to air their views freely relative to the theme: "Facing Socio-Economic Challenges
in the 3rd Millennium, Its Alternative for Good Governance," a theme which is not totally apolitical considering that it pertains to alternative
good governance.14 The RTC noted that the fact that Valeriano was singled out by petitioners, Gilana, and Gonzales, although his
participation was only to deliver the Welcome Address, is indicative of malice. Also, the R TC held that the act of filing numerous cases
before the CSC, COA, and the Ombudsman, which cases were subsequently found to be unsubstantiated, is reflective of ill will or the
desire for revenge.15

Due to the unfounded complaints initiated by the petitioners, the RTC decided in favor of Valeriano. By reason of his physical suffering,
mental anguish, and social humiliation, the RTC awarded Valeriano ₱300,000.00 as moral damages; ₱200,000.00 as exemplary damages;
and ₱30,000.00 as attorney's fees and litigation expenses.16

The Ruling of the Court of Appeals

In the assailed decision, the CA reversed the trial court's ruling insofar as Gonzales and Gilana were concerned, 17but affirmed that
petitioners should be held liable for damages.18 It held that Gonzales and Gilana did not act with malice to vex or humiliate Valeriano by the
mere act of initiating an administrative case against him with the CSC and the Ombudsman.19 On the other hand, the CA held that
petitioners' act of refiling their complaint with the CSC in April 2001, notwithstanding the pendency of the administrative case with the
Ombudsman, shows bad faith.20 The CA further held that petitioners' intent to prejudice and injure Valeriano was revealed when they did
not inform their lawyer of the pending case with the Ombudsman.21

The Issue

The pivotal issue in this case is whether petitioners acted with malice or bad faith in filing the administrative complaints against Valeriano.

The Court's Ruling

We rule in the negative.

At the onset, we must remember that our scope of review in a Rule 45 petition is limited to questions of law. 22 This limitation exists
because the Supreme Court is not a trier of facts that undertakes the re-examination and re-assessment of the evidence presented by the
contending parties during the trial.23 The appreciation and resolution of factual issues are the functions of the lower courts, whose resulting
findings are then received with respect and are binding on the Supreme Court subject to certain exceptions. 24
These exceptional circumstances when we have entertained questions of fact are: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when
in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are
not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion.25

The issue raised in the present petition is clearly not a question of law as it requires a re-examination of the weight and probative value of
the evidence presented by the litigants and, thus, asking us to make a different factual conclusion. In other words, what is being asked of
us now is to review the factual circumstances that led to the filing of numerous administrative complaints against Valeriano, and to
determine the presence of ill motive, malice or bad faith to justify the award for damages.

After reviewing the records and the conclusions arrived at by the lower courts, however, we find that they had misappreciated the factual
circumstances in this case thereby qualifying this case as an exception to the rule that a petition for review on certiorari is limited to
questions of law.

Article 19 of the Civil Code contains what is commonly referred to as the principle of abuse of rights which requires that everyone must act
with justice, give everyone his due, and observe honesty and good faith. The law recognizes a primordial limitation on all rights; that in their
exercise, the norms of human conduct must be observed. A right, though by itself legal because it is recognized or granted by law as such,
may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held
responsible.26

The elements of abuse of rights are the following: (a) the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) with
the sole intent of prejudicing or injuring another.27

The existence of malice or bad faith is the fundamental element in abuse of right. In an action to recover damages based on malicious
prosecution, it must be established that the prosecution was impelled by legal malice. 28 There is necessity of proof that the suit was
patently malicious as to warrant the award of damages under Articles 19 to 21 of the Civil Code or that the suit was grounded on malice or
bad faith.29 There is malice when the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated
deliberately by the defendant knowing that his charges were false and groundless.30 The award of damages arising from malicious
prosecution is justified if and only if it is proved that there was a misuse or abuse of judicial processes. 31 Concededly, the mere act of
submitting a case to the authorities for prosecution does not make one liable for malicious prosecution.32

In this case, what prompted petitioners to initiate the complaint against Valeriano was his vital participation in the multi-sectoral conference
that was held wherein certain local officials were the subject of criticisms.

No less than the Constitution prohibits such officers and employees in the civil service in engaging in partisan political activity, to wit:

Section 2. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political
campaign.

Correspondingly, the Revised Administrative Code of 1987, in its provisions on the Civil Service, provides:

SEC. 55. Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to
coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee
from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he
supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall
be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in
the Election Code.33

During the consultative conference held by the Holy Name Society, speakers were allowed to criticize certain incumbent local officials. The
conference was held at a time so close to the holding of the 2001 elections. Valeriano, an employee of the COA, was, incidentally, the
president of said religious organization. Given the law's prohibition on public officers and employees, such as Valeriano, from engaging in
certain forms of political activities, it could reasonably be said that those who had filed the complaints against Valeriano before the CSC
and the Office of the Ombudsman had done so as they had reason to believe that Valeriano was violating the prohibition. Given the
circumstances of the conference, it can reasonably be said that the complaints were filed out of a belief in a viable cause of action against
Valeriano. Put in another way, it cannot be said, for certain, that the complaints against Valeriano were filed simply out of malice.

Indeed, the CA, in absolving Gonzales and Gilana, found no malice or bad faith in the first complaint with the CSC, to wit:

Defendants-appellants miserably failed to show that plaintiff-appellee Valeriano probably engaged in partisan political activity when the
latter urged the participants in his welcome address "to join hands together to build and offer our constituents a good governance as
alternative of which, I will leave it to your noble hands." Witness for defendants-appellants Asotes did not even see and hear plaintiff-
appellee Valeriano deliver his welcome address.
However, there is no showing that defendants-appellants Gonzales and Gilana acted with malice or sinister design to vex or
humiliate plaintiff-appellee Valeriano by the mere act of initiating an administrative case for electioneering against the latter with the
CSC and with the Office of the Ombudsman after the dismissal without prejudice of the complaint by the CSC.34 (emphasis supplied)

This Court, however, disagrees with the CA that the mere re-filing of the complaint with the CSC is reason to hold petitioners liable for
damages.1âwphi1 It must be remembered that the same complaint had earlier been dismissed on a technicality, 35 and that the CSC
directed that the dismissal was without prejudice, i.e., the complaint may be re-filed after compliance with the technical rules. Following the
discussion of the CA as quoted above, we can say that this same complaint was likewise not filed out of malice. It was borne out of a
reasonable belief on the illegality of Valeriano’s acts. Parenthetically, whether Valeriano’s acts do amount to illegalities is another question
altogether, one that is not within the purview of the present review.

It is a doctrine well-entrenched in jurisprudence that the mere act of submitting a case to the authorities for prosecution, of and by itself,
does not make one liable for malicious prosecution, for the law could not have meant to impose a penalty on the right to litigate. 36

Valeriano failed to prove that the subject complaints against him were motivated purely by a sinister design. It is an elementary rule that
good faith is presumed and that the burden of proving bad faith rests upon a party alleging the same. Absent such, petitioners cannot be
held liable for damages.

WHEREFORE, the foregoing premises considered, the Decision dated 25 September 2008, and the Resolution dated 5 December 2008,
of the Court of Appeals in CA-G.R. CV No. 88795 are hereby REVERSED and SET ASIDE. A new judgment is rendered DISMISSING the
complaint in Civil Case No. 01-176 filed by Romeo H. Valeriano before the Regional Trial Court, Branch 65, Bulan, Sorsogon, for lack of
merit.

SO ORDERED.

9. Pagano vs. Nazarro, Jr., G.R. No. 149072, Sept. 21, 2007

G.R. NO. 149072 : September 21, 2007]

ESTHER S. PAGANO, Petitioner, v. JUAN NAZARRO, Jr., ROSALINE Q. ELAYDA, RODRIGO P. KITO and ERNESTO M.
CELINO, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1dated 7 March 2001, rendered by the
Court of Appeals in CA-G.R. SP No. 53323. In reversing the Decision,2 dated 4 January 1999, rendered by Branch 10 of the Regional Trial
Court of La Trinidad, Benguet, the Court of Appeals declared that the petitioner, Esther S. Pagano, may still be held administratively liable
for dishonesty, grave misconduct and malversation of public funds through falsification of official documents.

While the petitioner was employed as Cashier IV of the Office of the Provincial Treasurer of Benguet, it was discovered that in her
accountabilities she had incurred a shortage of P1,424,289.99. On 12 January 1998, the Provincial Treasurer wrote a letter directing
petitioner to explain why no administrative charge should be filed against her in connection with the cash shortage.3 Petitioner submitted
her explanation on 15 January 1998.4

On 16 January 1998, petitioner filed her Certificate of Candidacy for the position of Councilor in Baguio City. 5

On 22 January 1998, the Office of the Provincial Governor of Benguet found the existence of a prima facie case for dishonesty, grave
misconduct and malversation of public funds through falsification of official documents and directed the petitioner to file an answer.6 The
Provincial Governor also issued Executive Order No. 98-02, creating an ad hoc committee composed of herein respondents to investigate
and submit findings relative to the administrative charges against petitioner.7

On 10 February 1998, petitioner filed her Answer before the Office of the Provincial Governor. Petitioner alleged that she had merely acted
under the express direction of her supervisor, Mr. Mauricio B. Ambanloc. She further claimed that the funds and checks were deposited in
the depository banks of the Province of Benguet, but the records are devoid of any documents to support her claim.8

On 19 February 1998, petitioner filed a motion to dismiss the administrative case on the ground that the committee created to investigate
her case had no jurisdiction over the subject of the action and over her person. 9 The respondents denied the said motion on 21 May
1998.10 Petitioner filed a motion for reconsideration, which was again denied on 1 July 1998.11

On 14 August 1998, petitioner filed a Petition for Certiorari and Prohibition with prayer for issuance of a Temporary Restraining Order and
Writ of Preliminary Injunction before Branch 10 of the Regional Trial Court of La Trinidad, Benguet. The trial court issued a Writ of
Preliminary Injunction on 7 September 1998.12
In the course of the audit and examination of the petitioner's collection accounts, the Commission on Audit (COA) discovered that the
petitioner was unable to account for P4,080,799.77, and not just the initial cash shortage of P1,424,289.99. Thus, the COA Provincial
Auditor, Getulio B. Santos, reported these findings to the Office of the Ombudsman in a letter dated 11 September 1998 with the
recommendation that civil, criminal and administrative cases be filed against petitioner.13

In its Decision, dated 4 January 1999, the trial court ruled in favor of the petitioner. It noted that the most severe penalty which may be
imposed on the petitioner is removal from service, and that under Section 66 of the Omnibus Election Code, petitioner was already
deemed resigned when she filed her Certificate of Candidacy on 16 January 1998. Section 66 of the Omnibus Election Code provides that:

Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and
employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.

Thus, it declared that even if the committee created by the Provincial Governor had the jurisdiction to hear the administrative case against
the petitioner, such case was now moot and academic.14 The dispositive part of the said Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of petitioner Esther Sison Pagano and against herein
respondents:

1. Finding that the Committee of which the respondents are members has no longer jurisdiction to conduct any investigation or
proceedings under civil service rules and regulations relative to the administrative case filed against the petitioner;

2. Finding that the Committee has acted with grave abuse of discretion and without jurisdiction in denying the Motion to Dismiss filed by the
petitioner in Administrative Case No. 98-01;

3. Declaring as null and void all acts, orders, resolutions and proceedings of the Committee in Administrative Case No. 98-01;

4. Ordering the respondents, their agents, representatives and all persons acting on their behalf, to desist from proceeding with
Administrative Case No. 98-01; andcralawlibrary

5. Declaring the writ of preliminary injunction dated September 07, 1998 as permanent.

No pronouncement as to costs.15

Respondents filed an appeal before the Court of Appeals. In reversing the Decision of the trial court, the appellate court pronounced that
even though petitioner's separation from service already bars the imposition upon her of the severest administrative sanction of separation
from service, other imposable accessory penalties such as disqualification to hold government office and forfeiture of benefits may still be
imposed.16

Petitioner filed a Motion for Reconsideration of the Decision of the Court of Appeals, which was denied in a Resolution dated 10 July
2001.17

Hence, in the present Petition, the sole issue is being raised:

WHETHER OR NOT A GOVERNMENT EMPLOYEE WHO HAS BEEN SEPARATED FROM THE CIVIL SERVICE BY OPERATION OF
LAW PURSUANT TO SECTION 66 OF BATAS PAMBANSA BILANG 881 (THE OMNIBUS ELECTION CODE) MAY STILL BE
ADMINISTRATIVELY CHARGED UNDER CIVIL SERVICE LAWS, RULES AND REGULATIONS18

Petitioner argues that a government employee who has been separated from service, whether by voluntary resignation or by operation of
law, can no longer be administratively charged. Such argument is devoid of merit.19

In Office of the Court Administrator v. Juan,20 this Court categorically ruled that the precipitate resignation of a government employee
charged with an offense punishable by dismissal from the service does not render moot the administrative case against him. Resignation is
not a way out to evade administrative liability when facing administrative sanction. The resignation of a public servant does not preclude
the finding of any administrative liability to which he or she shall still be answerable.21

A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be
served in passing upon the merits of the case.22 The instant case is not moot and academic, despite the petitioner's separation from
government service. Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on
the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against
her, namely, the disqualification to hold any government office and the forfeiture of benefits.

Moreover, this Court views with suspicion the precipitate act of a government employee in effecting his or her separation from service,
soon after an administrative case has been initiated against him or her. An employee's act of tendering his or her resignation immediately
after the discovery of the anomalous transaction is indicative of his or her guilt as flight in criminal cases.23

In the present case, the Provincial Treasurer asked petitioner to explain the cash shortage of P1,424,289.99, which was supposedly in her
custody on 12 January 1998. In her explanation, dated 15 January 1998, petitioner failed to render a proper accounting of the amount that
was placed in her custody; instead, she tried to shift the blame on her superior. Thus, the hasty filing of petitioner's certificate of candidacy
on 16 January 1998, a mere four days after the Provincial Treasurer asked her to explain irregularities in the exercise of her functions
appears to be a mere ploy to escape administrative liability.

Public service requires utmost integrity and discipline. A public servant must exhibit at all times the highest sense of honesty and integrity
for no less than the Constitution mandates the principle that "a public office is a public trust and all public officers and employees must at
all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency." 24 The Courts cannot
overemphasize the need for honesty and accountability in the acts of government officials. In Baquerfo v. Sanchez, 25 this Court reproached
a government employee for the theft of two unserviceable desk fans and one unserviceable stove. Moreover, the Court refused to take into
account the subsequent resignation of the said government employee. In the aforecited case, this Court emphatically declared that:

Cessation from office of respondent by resignation or retirement neither warrants the dismissal of the administrative complaint filed against
him while he was still in the service nor does it render said administrative case moot and academic. The jurisdiction that was this Court's at
the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office
during the pendency of his case. Respondent's resignation does not preclude the finding of any administrative liability to which he shall still
be answerable.26

Unlike the previously discussed case (Baquerfo), the present one does not involve unserviceable scraps of appliances. The petitioner was
unable to account for an amount initially computed at P1,424,289.99, and later recomputed by the COA at P4,080,799.77. With all the
more reason, this Court cannot declare petitioner immune from administrative charges, by reason of her running for public office.

In the very recent case, In re: Non-disclosure before the Judicial and Bar Council of the Administrative Case Filed Against Judge Jaime V.
Quitain, in His Capacity as the then Assistant Regional Director of the National Police Commission, Regional Office XI, Davao City,27 this
Court pronounced the respondent judge guilty of grave misconduct, despite his resignation:

Verily, the resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot and academic the instant
administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact
that the respondent judge by his resignation and its consequent acceptance - without prejudice - by this Court, has ceased to be in office
during the pendency of this case. x x x. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous
implications. Indeed, if innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he
has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the
situation.

This Court cannot countenance the petitioner's puerile pretext that since no administrative case had been filed against her during her
employment, she can no longer be administratively charged. Section 48, Chapter 6, Subtitle A, Title I, Book V of Executive Order No. 292,
also known as the Administrative Code of 1987, provides for the initiation of administrative proceedings by the proper personalities as part
of the procedural process in administrative cases:

Section 48. Procedures in Administrative Cases Against Non-Presidential Appointees. (1) Administrative proceedings may be commenced
against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of
agencies, or regional directors, or upon sworn, written complaint of any other person.

At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that she needed to
explain why no administrative charge should be filed against her, after it discovered the cash shortage of P1,424,289.99 in her
accountabilities. Moreover, she had already filed her answer. To all intents and purposes, the administrative proceedings had already been
commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy. Petitioner's
bad faith was manifest when she filed it, fully knowing that administrative proceedings were being instituted against her as part of the
procedural due process in laying the foundation for an administrative case.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

To support her argument that government employees who have been separated can no longer be administratively charged, petitioner cites
the following cases: Diamalon v. Quintillian,28 Vda. de Recario v. Aquino,29 Zamudio v. Penas, Jr.,30 Pardo v. Cunanan,31 and Mendoza v.
Tiongson.32 A piecemeal reference to these cases is too insubstantial to support the petitioner's allegation that her separation from
government service serves as a bar against the filing of an administrative case for acts she committed as an appointive government
official. In order to understand the Court's pronouncement in these cases, they must be examined in their proper contexts.

In Diamalon v. Quintillian,33 a complaint for serious misconduct was filed against the respondent judge questioning his issuance of a
warrant of arrest without the presence of the accused. A cursory review of the facts in this case shows that the administrative complaint
lacks basis, as there is nothing irregular in the act of the respondent judge in issuing a warrant of arrest without the presence of the
accused during the hearing for such issuance. After the case was filed, the respondent judge became seriously ill and his application for
retirement gratuity could not be acted upon because of the pending administrative case against him. Thus, the Court, out of Christian
justice, dismissed the administrative case against the respondent who was to retire and desperately needed his retirement benefits.

In Vda. de Recario v. Aquino,34 an administrative case was filed against the respondent judge for failure to immediately act on a case for
prohibition. In dismissing the complaint against the judge, the Court ruled that "there are no indications of bad faith on the part of the
respondent judge when he set for hearing in due course Civil Case No. 13335. If the complainants were prejudiced at all x x x, it was
because of complainant's own error in not asking for a writ of preliminary injunction or restraining order and not due to respondent's error
or delay in taking action or any other fault." It was only an aside that the Court even mentioned that the respondent judge had already
resigned. Thus, this case cannot be the basis for enjoining the administrative case against herein petitioner.
In Zamudio v. Penas, Jr.,35 an administrative complaint for dishonorable conduct was filed against the respondent judge. The Court did not
exculpate him from administrative liability, despite his retirement. The Court unequivocally declared: "The jurisdiction of the Court over this
case was, therefore, not lost when the respondent retired from the judiciary and, in the exercise of its power over the respondent as a
member of the bar, the Court may compel him to support his illegitimate daughters." 36 The Court merely mitigated the penalty when it took
into account the fact that respondent's dishonorable conduct occurred before his appointment as a judge, along with the fact that he had
reached compulsory retirement age during the pendency of the administrative case.37

In Pardo v. Cunanan,38 the Court did not dismiss the administrative case against the respondent government employee, but merely
imposed a lesser penalty of one-month suspension for her failure to disclose the fact that she had a pending administrative case when she
applied for another government post. In mitigating the penalty, the Court considered her good faith, as well as her resignation from her
previous post. The Court took into account the notice of acceptance of her resignation, stating that her "services while employed in this
office have been satisfactory and your future application for reinstatement may be favorably considered."39

In Mendoza v. Tiongson,40 this Court refused to accept the resignations filed by the respondents, which were intended solely to allow them
to evade the penalties this Court would impose against them. This ruling cannot be construed as a bar against filing administrative cases
against government employees who have been separated from their employment, for what would stop the latter from merely abandoning
their posts to evade administrative charges against them? To the contrary, this ruling can only strengthen this Court's resolve to diligently
continue hearing administrative cases against erring government employees, even after they are separated from employment.

To summarize, none of the rulings in the aforecited cases can justify the dismissal of the administrative case filed against herein petitioner
simply because she had filed her certificate of candidacy. The circumstances of the instant case are vastly different from those in Diamalon
v. Quintillian41 and Vda. de Recario v. Aquino,42 in which the respondent judges were able to present valid and meritorious defenses in the
administrative complaints filed against them. Petitioner in this case did not even attempt to properly account for the cash shortage
of P4,080,799.77 from the checks and funds that were in her custody. On the other hand, the respondent government employees in
Zamudio v. Penas, Jr.43 and Pardo v. Cunanan,44 were not absolved of their administrative liability; rather, the Court merely mitigated the
penalty it imposed upon them. In Mendoza v. Tiongson,45 the Court emphatically denounced the contemptible attempt of government
employees to elude the consequences of their wrongdoings by quitting their jobs. It is clear that this Court had dismissed administrative
cases, taking into consideration the resignation or retirement of the civil servants who presented meritorious defenses and, in certain
cases, even mitigated the penalties of those who were later found guilty of the administrative charge. But this Court has never abetted
government employees who deliberately set out to effect their separation from service as a means of escaping administrative proceedings
that would be instituted against them.

Petitioner relies on Section 66 of the Omnibus Election Code to exculpate her from an administrative charge. The aforementioned
provision reads:

Any person holding a public appointive officer or position, including active members of the Armed Forces of the Philippines, and officers
and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

Section 66 of the Omnibus Election Code should be read in connection with Sections 46(b)(26) and 55, Chapters 6 and 7, Subtitle A, Title
I, Book V of the Administrative Code of 1987:

Section 44. Discipline: General Provisions:

xxx

(b) The following shall be grounds for disciplinary action:

xxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxx

Section 55. Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to
coerce the political activity of any other person or body.

Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of
employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned,
merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This
provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government
service.

Section 4746 of the Administrative Code of 1987 provides for the authority of heads of provinces to investigate and decide matters involving
disciplinary actions against employees under their jurisdiction. Thus, the Provincial Governor acted in accordance with law when it ordered
the creation of an independent body to investigate the administrative complaint filed against petitioner for dishonesty, grave misconduct
and malversation of public funds through falsification of official documents in connection with acts committed while petitioner was
employed as Cashier IV in the Office of the Provincial Treasurer of Benguet.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Court of Appeals in CA-G.R. SP No.
53323, promulgated on 7 March 2001, is AFFIRMED. The Office of the Provincial Governor of Benguet is hereby DIRECTED to proceed
with Administrative Case No. 98-01 against the petitioner, Esther S. Pagano, for dishonesty, grave misconduct and malversation of public
funds through falsification of official documents. Costs against the petitioner.

SO ORDERED.

10. Quinto and Tolentino vs. Comelec, G.R. No. 189698, February 22, 2010

G.R. No. 189698 February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,

vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections’ (COMELEC) motion for
reconsideration, and the movants-intervenors’ motions for reconsideration-in-intervention, of this Court’s December 1, 2009 Decision
(Decision).1

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and
declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus
Election Code3 and Section 4(a) of COMELEC Resolution No. 8678,4mainly on the ground that they violate the equal protection clause of
the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue
discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public
appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and
appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the
purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal.

We find the foregoing arguments meritorious.

I.

Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for reconsideration which was filed on December
15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its
December 1, 2009 Decision.

i. Timeliness of COMELEC’s Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the same rules,6COMELEC had a period
of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the
assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service
(in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 – still within the
reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

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

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate
proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are
satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be
adequately pursued and protected in another proceeding.7

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.:

SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy
of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by
the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right
to be heard even after a decision has been rendered by the trial court, 8 when the petition for review of the judgment has already been
submitted for decision before the Supreme Court,9 and even where the assailed order has already become final and executory. 10 In Lim v.
Pacquing,11 the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury
and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court 12 after consideration of the
appropriate circumstances.13 We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers
of the court fully and completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote the administration
of justice.15

We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long
established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a
personal interest in maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against
appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from
their posts. They stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly,
their rights will be foreclosed if this Court’s Decision attains finality and forms part of the laws of the land.

With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections
laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members
in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance." 16

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial
interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify
its intervention.

We now turn to the substantive issues.

II.

Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic
Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive
offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction
as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants’ activity
regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay
level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code,
and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1,
2009 Decision.

III.

Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person
holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees
in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.

Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,17which repealed Section 67
of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned
only upon the start of the campaign period corresponding to the positions for which they are running,19 an elected official is not deemed to
have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an
elected official may run for another position without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and
employees from engaging in any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is
unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional
Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil
service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution.
However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan
political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to
really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really
lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now
here in this draft will really implement the constitutional intent against partisan political activity. x x x 20 (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a
number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code
of 1987 – respectively provide in relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxxx

Section 55. Political Activity. — No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to
coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee
from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom
he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it
shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates
prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees
in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:

xxxx

(i) Intervention of public officers and employees. — Any officer or employee in the civil service, except those holding political offices; any
officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay
self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes
in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan
political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices.
Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with
original charters."21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all
year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of a political office, elective positions
included.23

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues,
or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the
Constitutional Commission, viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13,
between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in
lieu thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973
Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general
prohibition against taking part in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to
disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always
pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate
the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in
partisan political campaigns or electioneering may vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to
disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect
the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last
phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign
except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part
actively in a political campaign.24

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection
Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third
paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal
protection clause of the Constitution in Fariñas, et al. v. Executive Secretary, et al.25

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was
assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the
deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso
facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be operative – they are deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-
resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the
Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code,
infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit
to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The
Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory
within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class,
and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the
mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions.
On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing
authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the
civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the
same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political
and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes
of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other
than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis appointive officials, is anchored upon
material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection
clause of the Constitution is, thus, not infringed.26

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be
guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once
a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same
manner.27 This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned
jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases
involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite
principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To
decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my
rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.28

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It
is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.29 This rule
applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the
final conclusion, and to any statement as to the matter on which the decision is predicated. 30 For that reason, a point expressly decided
does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even
though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point,
otherwise than it did.31 As we held in Villanueva, Jr. v. Court of Appeals, et al.:32

… A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the
contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has
been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every
point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority
merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make
statements of the court regarding other propositions dicta.33 (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all persons or things without
distinction.34 What it simply requires is equality among equals as determined according to a valid classification.35 The test developed by
jurisprudence here and yonder is that of reasonableness,36 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of
reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis-à-vis elected officials
is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain," viz.:

… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-
President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge
of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections.
Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position
during the entire election period and can still use the resources of his office to support his campaign. 38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address
every manifestation of the evil at once; it may proceed "one step at a time." 39 In addressing a societal concern, it must invariably draw lines
and make choices, thereby creating some inequity as to those included or excluded. 40 Nevertheless, as long as "the bounds of reasonable
choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative
aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach
each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably
arbitrary or capricious."45 He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those
bases as reasons for the enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness of the
classification is "fairly debatable."47In the case at bar, the petitioners failed – and in fact did not even attempt – to discharge this heavy
burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair, underinclusive, unwise, or not the best
solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment. 48

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I
submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.49 It involves the
choice or selection of candidates to public office by popular vote.50 Considering that elected officials are put in office by their constituents
for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for
the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such
officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are
concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not
merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of
judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign
will.51 (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from
running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the
behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis-à-vis appointive officials)
have greater political clout over the electorate, is indeed a matter worth exploring – but not by this Court. Suffice it to say that the remedy
lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and
thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislature’s power to make the deemed-
resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and
magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to
ascertain and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited,
Mancuso v. Taft.52 This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck
down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms – freedom of expression and
association;

(2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection
review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-
resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken
down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit."

Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme
Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil
Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of Oklahoma, et
al.,54 the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal55 and state56 employees
from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation
of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees,
the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii)
the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting
efficiency of public services; (iii) if the employees’ expression interferes with the maintenance of efficient and regularly functioning services,
the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which
positions are to be covered by any statutory restrictions.57 Therefore, insofar as government employees are concerned, the correct
standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental
interests and the prohibitions in question.58

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal
employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative
government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal
employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described.
They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,59 the government has an interest in regulating the conduct and ‘the speech of its
employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public
concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its
employees.’ Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the
Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies,
should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party.
They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political
party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial
execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce
the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for
enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to
build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress
that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for
that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure
and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the
Government service not depend on political performance, and at the same time to make sure that Government employees would be free
from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many
years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs
and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at
the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service
Commission stated that ‘the prohibitions against active participation in partisan political management and partisan political campaigns
constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at some time will come to a different view of the
realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it.
Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event. 60 x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with
constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees.
Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater
numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from
‘political extortion.’ Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is
unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and
conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in
toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt that s 818 is similarly not so vague that ‘men of
common intelligence must necessarily guess at its meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to
suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards' for those who
must apply it. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political
club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other
political purpose’ and taking part ‘in the management or affairs of any political party or in any political campaign.’ Words inevitably contain
germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part
in,’ or ‘affairs of’ political parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English language with
respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on
finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand
and comply with, without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must
therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth
doctrine may appropriately be invoked in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus
placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong
medicine. It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.
Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at
best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute
against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely
speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should
be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if
engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and
neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or
criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter
Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees
from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national,
state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public
office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign
literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as
presently construed, we do not believe that s 818 must be discarded in toto because some persons’ arguably protected conduct may or
may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face.
(italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and
Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to
different types of laws and were decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act’s
prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates
for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions,
and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahoma’s Merit System of
Personnel Administration Act restricting the political activities of the State’s classified civil servants, in much the same manner as the Hatch
Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively
participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission
employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and
for receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and
classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers
and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and
Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island
General Assembly. He assailed the constitutionality of §14.09(c) of the City Home Rule Charter, which prohibits "continuing in
the classified service of the city after becoming a candidate for nomination or election to any public office."

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the
Hatch Act’s prohibition against "active participation in political management or political campaigns" 63 with respect to certain
defined activities in which they desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others,
running in local elections for offices such as school board member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in
his local community for fear that his participation in a partisan election would endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the
Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil
Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not
permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries
leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of
candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of
such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these
persons.64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-
paragraphs of Section 818 of Oklahoma’s Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that "[n]o employee in the classified service shall be … a candidate for nomination or election to any paid public office…"
Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could
Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided
by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals – the same court that
decided Mancuso – to hold categorically and emphatically in Magill v. Lynch65 that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s "Little Hatch Act" prohibits city employees
from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, 66 the violation being
punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the
provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that
Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be
infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court
(finding that the government’s interest in regulating both the conduct and speech of its employees differed significantly from its interest in
regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to
determine whether limits on political activity by public employees substantially served government interests which were "important" enough
to outweigh the employees’ First Amendment rights.67

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it
was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to
help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city
election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of
Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers
reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained
Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in
partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional.
Letter Carriers and Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court’s interest balancing approach to the kind of
nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft
than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could
be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of
its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v.
Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the
Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process". 68 It appears that the government may place limits
on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the
employees' First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter
Carriers and applied them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party.
The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national
platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of
possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions,
but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the
avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political
preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is
not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful
campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to
help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily
justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less,
for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had
in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties
had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective
both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing
customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably
have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on
the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit
the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and
candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real
danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual
employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a
handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be
expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a
carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by
the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and
that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked
only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal
elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a
legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but
without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a
large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter
Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished
interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to
endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national
elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or
running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses
less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The
possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are
considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the petitioners’ overbreadth charge. Noting
that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick,
when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the
challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and
how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support
for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for
political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The
facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction
between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning.
Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth
apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid
applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is
probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a
law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially
invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a
number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of
elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or
federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in
campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local
Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the
dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute
as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that
the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the
possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we
remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has
effectively been overruled.69 As it is no longer good law, the ponencia’s exhortation that "[since] the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow
suit" is misplaced and unwarranted.70

Accordingly, our assailed Decision’s submission that the right to run for public office is "inextricably linked" with two fundamental freedoms
– those of expression and association – lies on barren ground. American case law has in fact never recognized a fundamental right to
express one’s political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v. Telford73 pointedly stated that "[t]he
First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either."
Thus, one’s interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring one’s action under
the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a
particular set of voters.75

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection
clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government
and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a
powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion
and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective office.1avvphi1

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et al. v. Judiciary Commission of the
State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to
specified officials, he explains:

…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular
officials, as distinguished from all others,78 under a classification that is germane to the purposes of the law. These resign-to-run
legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of
the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as
to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not
because they referred to specified or particular officials (vis-à-vis a general class); the questioned provisions were found valid precisely
because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it
happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to
explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become
candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that § 65 imposes
on candidacy are even less substantial than those imposed by § 19. The two provisions, of course, serve essentially the same state
interests. The District Court found § 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy,
but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to § 65 and why others
are not. As with the case of § 19, we conclude that § 65 survives a challenge under the Equal Protection Clause unless appellees can
show that there is no rational predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with
regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in
1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the
provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices
would be contested at each election. The automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities who serve terms longer than two years.
Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in
applying the automatic resignation provision to those officeholders whose terms were not extended by § 11 or § 65, absent an invidious
purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not
devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict
one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The
provision's language and its history belie any notion that § 65 serves the invidious purpose of denying access to the political process to
identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public
employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to
confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental
interests vis-à-vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and
fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing
their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's
decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we
approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the
methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office
bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth
amendment's guarantee of equal protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan
political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which
such restrictions are placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal
protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of
position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto; 79 and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the
type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil
servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the
degree of influence that may be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official
running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of
a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the
scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."80 As
elucidated in our prior exposition:81

Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their
own candidacy may seem tolerable – even innocuous – particularly when viewed in isolation from other similar attempts by other
government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that
such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to
advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the
bureaucracy.

…[T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on
the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as
to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to
all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are
sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,"82 so that
restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office
sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan
elective offices, the challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent
than real. Our exposition on this issue has not been repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of
candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local
Elections.83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for
purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear
that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the
May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related
laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this
country which involve nonpartisan public offices.84

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that
these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in
Section 39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files
a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the
beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he
is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those
in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a
barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion
to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of
RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus
Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding
provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge
would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the
general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and
speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in
general.86

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this
case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the
statute’s plainly legitimate sweep.87

In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among other things, a rough balancing of the
number of valid applications compared to the number of potentially invalid applications. 88 In this regard, some sensitivity to reality is
needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.89 The question is a matter of
degree.90 Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute
which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate
or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from
party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.91

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step
is not to be taken lightly, much less to be taken in the dark,92 especially since an overbreadth finding in this case would effectively prohibit
the State from ‘enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.’ 93

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the
analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is
manifestly strong medicine that must be used sparingly, and only as a last resort.94

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that
protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad
statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished. 95 Facial overbreadth
has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily
apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute. 96

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue
elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a
potentially overly broad statute.a1f

In this light, the conceivably impermissible applications of the challenged statutes – which are, at best, bold predictions – cannot justify
invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years
been, unquestionably within its power and interest to proscribe.97Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself. 98

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that
a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. 99 Several
COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces.100 Even the Secretary of Justice
had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 101 – even as her
position as Justice Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-Chairmen of the
respective Boards of Canvassers.103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat
into the political arena. We cannot allow the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66
of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’ Motions for Reconsideration; REVERSE and
SET ASIDE this Court’s December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not
UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

11. National Amnesty Commission vs. COA, G.R. No. 156982, Sept. 8, 2004 (done)

12. Philippine Economic Zone Authority vs. COA, July 3, 2012

[G.R. No. 189767 : July 03, 2012]

PHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA), PETITIONER, VS. COMMISSION ON AUDIT AND REYNALDO A. VILLAR,
CHAIRMAN, COMMISSION ON AUDIT, RESPONDENTS.cralaw

RESOLUTION

VILLARAMA, JR., J.:

Before us is a petition for certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to annul
Commission on Audit (COA) Decision No. 2009-081[1] which affirmed the Decision[2] of the Director, Cluster IV - Industrial and Area
Development and Regulatory, Corporate Government Sector, COA, affirming Notice of Disallowance Nos. 2006-001-101 (02-06) to 2006-
021-101 (01-03)[3] for the payment of P5,451,500.00 worth of per diems to ex officio members of the Board of Directors of petitioner
Philippine Economic Zone Authority (PEZA).cralaw

The Facts

The PEZA Board of Directors is composed of 13 members which include the Undersecretaries of the Department of Finance, the
Department of Labor and Employment, the Department of the Interior and Local Government, the Department of Environment and Natural
Resources, the Department of Agriculture, the Department of Public Works and Highways, the Department of Science and Technology and
the Department of Energy. Said Undersecretaries serve in ex officio capacity and were granted per diems by PEZA for every attendance in
a board meeting.cralaw

On September 13, 2007, the PEZA Auditor Corazon V. Españo issued Notice of Disallowance Nos. 2006-001-101 (02-06) to 2006-021-101
(01-03) on the following payments of per diems to ex officio members of the PEZA Board for the period 2001-2006:chanrobles virtualaw
library

N.D. No. DATE PAYEE TOTAL AMOUNT

2006-001-101 (02-06) 7/26/07 Eduardo R. Soliman, Jr. P 632,000.00
2006-002-101 (02-05) 7/16/07 Juanita D. Amatong 448,000.00
2006-003-101 (01-02) 7/16/07 Anselmo S. Avenido 162,000.00
2006-004-101 (01) 7/16/07 Rosalinda Dimapilis-Baldoz 45,000.00
2006-005-101(05) 7/16/07 Benedicto Ernesto R. Bitonio, Jr. 56,000.00
2006-006-101 (05-06) 7/19/07 Manuel M. Bonoan 112,000.00
2006-007-101(01-02) 7/19/07 Arturo D. Brion 177,000.00
2006-008-101(05/06) 7/19/07 Armando A. De Castro 144,000.00
2006-009-101(02-06) 7/19/07 Fortunato T. De La Peña 904,000.00
2006-010-101(01) 7/19/07 Roseller S. Dela Peña 36,000.00
2006-011-101(01-05) 7/23/07 Cyril Del Callar 762,000.00
2006-012-101(03) 7/23/07 Renato A. De Rueda 48,000.00
2006-013-101(01-06) 7/23/07 Cesar M. Drilon, Jr. 811,000.00
2006-014-101(03-05) 7/23/07 Josephus B. Jimenez 336,000.00
2006-015-101(01) 7/23/07 Rufino C. Lirag, Jr. 63,000.00
2006-016-101(06) 7/26/07 Gaudencio A. Mendoza, Jr. 16,000.00
2006-017-101(03-04) 7/26/07 Rolando L. Metin 256,000.00
2006-018-101(01-02) 7/26/07 Edmundo V. Mir 124,500.00
2006-019-101(05-06) 7/26/07 Melinda L. Ocampo 104,000.00
2006-020-101(05-06) 7/26/07 Luzviminda G. Padilla 56,000.00
2006-021-101(01-03) 7/26/07 Ramon J.P. Paje _____159,000.00
TOTAL P5,451,500.00[4]

The disallowance was based on this Court’s April 4, 2006 En Banc Resolution dismissing the petition for certiorari in Cyril del Callar, et al.,
Members of the Board of Directors, Philippine Economic Zone Authority v. COA and Guillermo N. Carague, Chairman, COA [5] which
assailed COA Decision No. 2006-009 dated January 31, 2006 affirming the March 29, 2002 decision of the Director, then Corporate Audit
Office II, disallowing the payment of per diems of ex officio members of the PEZA Board of Directors. Said disallowance was based on
COA Memorandum No. 97-038 dated September 19, 1997 implementing Senate Committee Report No. 509 and this Court’s ruling in Civil
Liberties Union v. Executive Secretary.[6]chanrobles virtual law library

On October 31, 2007, the Deputy Director General for Finance and Administration of PEZA moved to reconsider[7] the subject Notices of
Disallowance (NDs) and prayed that the concerned ex officiomembers be allowed to retain the per diems already received as they
received them in good faith. It was contended that the payment of the per diems covered the period when the April 4, 2006 Supreme Court
Resolution was not yet final and thus, PEZA honestly believed that the grant of the same was moral and legal. In the same vein, the ex
officio members received them in good faith. The motion cited the cases of Home Development Mutual Fund v. Commission on Audit[8] and
De Jesus v. Commission on Audit[9] as bases.cralaw

In a letter[10] dated November 16, 2007, PEZA Auditor Españo denied the motion for reconsideration. She stated that the PEZA
Management continued paying the per diems even after they were duly notified through said NDs that such was in violation of
the Constitution as explained in the Civil Liberties Unioncase. She opined that the receipt of the NDs in effect notified the recipients and
PEZA officials that such payment was illegal and hence, the failure of PEZA to heed the notices cannot be deemed consistent with the
presumption of good faith.cralaw

By letter[11] dated January 4, 2008, PEZA Director General Lilia B. De Lima appealed the denial of their motion for reconsideration to the
Office of the Cluster Director, COA. De Lima reiterated their claim of good faith contending that the Del Callar case had yet to be decided
with finality when the subject per diems were disbursed. She argued that since the issue on the propriety of giving per diems to ex
officiomembers was still unresolved, and because PEZA firmly believed that it had legal basis, it continued to pay the per diems despite
knowledge and receipt of NDs. Good faith, therefore, guided PEZA in releasing the payments.cralaw

In a 2nd Indorsement[12] dated March 17, 2008, the COA Cluster Director, Ma. Cristina Dizon-Dimagiba, denied PEZA’s appeal. She ruled
that PEZA’s claim of good faith cannot be given merit because in several other instances previous payments of per diems have been
disallowed. She noted that by the time PEZA received the notices of disallowance, it can be said that there is already an iota of doubt as to
whether the said transaction is valid or not. Hence, good faith can no longer apply.cralaw

On April 30, 2008, PEZA filed a petition for review[13] before the COA to assail the denial of its appeal by the Office of the Cluster Director.
PEZA reiterated the same arguments it raised in its appeal.cralaw

On September 15, 2009, the COA rendered the assailed decision denying PEZA’s petition for review. The dispositive portion
reads:chanrobles virtualaw library

WHEREFORE, foregoing premises considered, the instant petition is hereby DENIED for lack of merit. Accordingly, ND Nos. 2006-001-
101 (02-06) to 2006-021-101 (01-03) in the total amount of P5,451,500.00 representing payment of per diems to ex-officio members of the
Board of Directors of PEZA are hereby AFFIRMED. All the recipients and the persons liable thereon are required to refund the said
disallowed per diems. The Auditor of PEZA is also directed to inform this Commission of the settlement made thereon. [14]

The COA ruled that the last paragraph of Section 11 of Republic Act (R.A.) No. 7916 authorizing the members of the Board to receive per
diems was deleted in the amendatory law, R.A. No. 8748. Hence, from the time of the effectivity of R.A. No. 8748 in 1999, the members of
the PEZA Board of Directors were no longer entitled to per diems. It further held that the payments to and receipt by ex officiomembers of
the PEZA Board of per diems for CYs 2001-2006 run counter to the express prohibition in Section 13, Article VII of the 1987
Constitution.cralaw

The COA also dismissed PEZA’s claim of good faith in making the disbursements of per diems to the ex officio members of its Board. It
ruled:chanrobles virtualaw library

As to the petitioners’ claim of “good faith,” it must be emphasized that under the Bitoniocase, as early as 1998, PEZA was already notified
of the illegality of the payment of per diems to ex-officio members of the PEZA Board thru the NDs issued by the COA Auditor from 1995 to
1998 on the payment of per diem to every board meeting attended by the petitioner Benedicto Ernesto R. Bitonio, Jr. as representative of
the Secretary of Labor to the PEZA. This was anchored on the case of Civil Liberties Union v. Executive Secretary, supra, which affirmed
COA Decision Nos. 2001-045 and 98-017-101(97) dated January 30, 2001 and October 9, 1998, respectively, which declared
that:chanrobles virtualaw library
“x x x The framers of R.A. No. 7916 (Special Economic Zone Act of 1995) must have realized the flaw in the law which is the reason why
the law was later amended by R.A. No. 8748 to cure such defect.cralaw

x x x

Likewise, the last paragraph as to the payment of per diems to the members of the Board of Directors was also deleted, considering that
such stipulation was clearly in conflict with proscription set by the Constitution.cralaw

Prescinding from the above, the petitioner (Benedicto Ernesto R. Bitonio, Jr.) is indeed, not entitled to receive a per diem for his
attendance at board meetings during his tenure as member of the Board of Directors of the PEZA.” (italics ours)

After the Bitonio case, the Auditor again disallowed the payments of per diems granted for the period 1999 to 2000 by PEZA to the ex-
officio members of the PEZA Board under ND Nos. 2001-001-101 to 2001-008-101, which were upheld under COA Decision No. 2006-009
dated January 31, 2006. Thus, PEZA was repeatedly notified of the illegality of the payment of the said per diems. However, similar
disbursements were continued, ignoring the Auditor’s findings. At the time they first received the ND in 1998, it can be said that there
should already have been a doubt to say the least, on the legality of the said transaction which should have made management
discontinue such payments. But even after the promulgation of the SC decision in the Bitonio case, PEZA continued the payment of the
same until year 2006. Indeed, such actuation is incompatible with good faith. Hence, even if the per diems were granted prior to the finality
of the Cyril Del Callar v. COA case cited by herein petitioner, PEZA management was already aware that the payment thereof had been
declared illegal by the SC in the earlier aforecited cases.[15]

PEZA now comes to this Court seeking to annul the assailed decision on the following grounds:chanrobles virtualaw library

REPUBLIC ACT NO. 7916, AS AMENDED BY REPUBLIC ACT NO. 8748 ALLOWS THE PAYMENT OF PER DIEMS TO THE MEMBERS
OF THE PEZA BOARD OF DIRECTORS.cralaw

THE EX-OFFICIO MEMBERS OF THE PEZA BOARD OF DIRECTORS SHOULD NO LONGER BE REQUIRED TO REFUND THE PER
DIEMS ALREADY RECEIVED BECAUSE THEY WERE OF THE HONEST BELIEF THAT THEY WERE LEGALLY ENTITLED TO
RECEIVE THE SAME.[16]

PEZA argues that contrary to the COA’s position, the last paragraph of Section 11, R.A. No. 7916 authorizing the members of the PEZA
Board to receive per diems still exists because it was never deleted in R.A. No. 8748. It contends that just because the last paragraph of
Section 11, R.A. No. 7916 does not appear in Section 1 of R.A. No. 8748 but is merely represented by the characters “x x x” does not
mean that it has already been deleted. PEZA submits that since there was no repeal by R.A. No. 8748 and neither was the last paragraph
of Section 11 of R.A. No. 7916 declared void or unconstitutional by this Court, the provision enjoys the presumption of validity and
therefore, PEZA cannot be faulted for relying on the authority granted by law.cralaw

PEZA also insists on its claim of good faith. It emphasizes that the per diems were granted by PEZA in good faith as it honestly believed
that the grant of the same was legal and similarly, the ex officio members of the PEZA Board received the per diems in good faith.cralaw

COA, for its part, opposes PEZA’s contention that the last paragraph of Section 11 of R.A. No. 7916 authorizing the grant of per diems to
ex officio members of the PEZA Board was not deleted by its amendatory law, R.A. No. 8748, citing this Court’s ruling in Bitonio, Jr. v.
Commission on Audit.[17]chanrobles virtual law library

COA likewise contends that the deletion of the last paragraphs of the subject provision merely conformed with the Constitution. It argues
that the position of the undersecretaries of the Cabinet as members of the Board is in an ex officio capacity or part of their principal office
and thus, they were already being paid in their respective Departments. To allow them to receive additional compensation in PEZA would
amount to double compensation. COA submits that this is precisely the reason why this Court, in several cases, declared unconstitutional
the payment of additional compensation to ex officio officials.cralaw

The Issues

Does the PEZA have legal basis in granting per diems to the ex officio members of its Board? And if there is no legal basis, was there
good faith in PEZA’s grant and the ex officio members’ receipt of the per diems?

Our Ruling

The Court finds the petition devoid of merit.cralaw

The lack of legal basis to grant per diems to ex officio members of the PEZA Board, including their representatives, has already been
settled by no less than the Court En Banc in the case of Bitonio, Jr.where we held that the amendatory law, R.A. No. 8748, purposely
deleted the last paragraph of Section 11 of R.A. No. 7916 that authorized the grant of per diems to PEZA Board members as it was in
conflict with the proscription laid down in the 1987 Constitution. We held in Bitonio, Jr.:chanrobles virtualaw library

The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason why the law was later amended by R.A. No. 8748
to cure such defect. In particular, Section 11 of R.A. No. 7916 was amended to read:chanrobles virtualaw library

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. – There is hereby created a body corporate to be known as the
Philippine Economic Zone Authority (PEZA) attached to the Department of Trade and Industry. The Board shall have a director general
with the rank of department undersecretary who shall be appointed by the President. The director general shall be at least forty (40) years
of age, of proven probity and integrity, and a degree holder in any of the following fields: economics, business, public administration, law,
management or their equivalent, and with at least ten (10) years relevant working experience preferably in the field of management or
public administration.cralaw

The director general shall be assisted by three (3) deputy directors general each for policy and planning, administration and operations,
who shall be appointed by the PEZA Board, upon the recommendation of the director general. The deputy directors general shall be at
least thirty-five (35) years old, with proven probity and integrity and a degree holder in any of the following fields: economics, business,
public administration, law, management or their equivalent.cralaw

The Board shall be composed of thirteen (13) members as follows: the Secretary of the Department of Trade and Industry as Chairman,
the Director General of the Philippine Economic Zone Authority as Vice-chairman, the undersecretaries of the Department of Finance, the
Department of Labor and Employment, the Department of [the] Interior and Local Government, the Department of Environment and Natural
Resources, the Department of Agriculture, the Department of Public Works and Highways, the Department of Science and Technology, the
Department of Energy, the Deputy Director General of the National Economic and Development Authority, one (1) representative from the
labor sector, and one (1) representative from the investors/business sector in the ECOZONE. In case of the unavailability of the Secretary
of the Department of Trade and Industry to attend a particular board meeting, the Director General of PEZA shall act as Chairman.

As can be gleaned from above, the members of the Board of Directors was increased from 8 to 13, specifying therein that it is the
undersecretaries of the different Departments who should sit as board members of the PEZA. The option of designating his representative
to the Board by the different Cabinet Secretaries was deleted. Likewise, the last paragraph as to the payment of per diems to the
members of the Board of Directors was also deleted, considering that such stipulation was clearly in conflict with the proscription set by the
Constitution.cralaw

Prescinding from the above, the petitioner is, indeed, not entitled to receive a per diem for his attendance at board meetings during his
tenure as member of the Board of Directors of the PEZA.[18] (Italics in the original.)

PEZA’s insistence that there is legal basis in its grant of per diems to the ex officio members of its Board does not hold water. The
constitutional prohibition explained in Civil Liberties Union case still stands and this Court finds no reason to revisit the doctrine laid down
therein as said interpretation, to this Court’s mind, is in consonance with what our Constitution provides.cralaw

Neither can this Court give credence to PEZA’s claim of good faith.cralaw

In common usage, the term “good faith” is ordinarily used to describe that state of mind denoting “honesty of intention, and freedom from
knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any
unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or
belief of facts which render transaction unconscientious.”[19]chanrobles virtual law library

Definitely, PEZA cannot claim that it was not aware of circumstances pointing to the possible illegality of the disbursements of per diems to
the ex officio members of the Board. In Civil Liberties Union, this Court clarified the prohibition under Section 13, Article VII of
the Constitution and emphasized that a public official holding an ex officio position as provided by law has no right to receive additional
compensation for the ex officio position. This Court ruled:chanrobles virtualaw library

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13,
Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned
has no right to receive additional compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the
primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional
compensation is prohibited by the Constitution.[20] (Italics in the original; emphasis supplied.)

It bears stressing that the Civil Liberties Union case was promulgated in 1991, or a decade before the subject disallowed payments of
per diems for the period starting 2001 were made by PEZA. Thus, even if the Bitonio case was only promulgated in 2004 when part of
the disallowed payments have already been made, PEZA should have been guided by the Civil Liberties Union case and acted with
caution. It would have been more prudent for PEZA, if it honestly believed that there is a clear legal basis for the per diems and there was
a chance that this Court might rule in their favor while the Bitonio case was pending, to withhold payment of the per diem instead of paying
them. PEZA’s actual knowledge that the disbursements are being questioned by virtue of the notices of disallowance issued to them by
the COA and knowledge of the pronouncements of the Court in the Civil Liberties Union case and in other cases [21] where ex officio
members in several government agencies were prohibited from receiving additional compensation, militate against its claim of good
faith.cralaw

WHEREFORE, in light of the foregoing, the present petition is DISMISSED. The assailed COA Decision No. 2009-081 dated September
15, 2009 is AFFIRMED and UPHELD.

No costs.cralaw

SO ORDERED.
 13. Santos vs. Court of Appeals, G.R. No. 139792, November 22, 2000

G.R. No. 139792 November 22, 2000

ANTONIO P. SANTOS, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA
DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents.

DECISION

DAVIDE, JR., C.J.:

In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals 1 in CA-G.R. SP No. 48301,
which held that petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the
Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City
for which he has already been given retirement gratuity and pension.

The undisputed facts are as follows:

On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the military-
backed EDSA revolt, petitioner was reappointed to the same position.

On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, 2 as amended, and received his retirement gratuity
under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension.

On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of the
MMA. His appointment was approved by the Civil Service Commission (CSC).

On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development
Authority (MMDA). Section 11 thereof reads:

Section 11. Transitory Provisions. – To prevent disruption in the delivery of basic urban services pending the full implementation of the
MMDA’s organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exercise their duties
and functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and of
being transferred to another office or position.

...

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced. The
national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of
one and one-fourth (1¼) month’s salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws,
said employees may opt to receive the benefits thereunder.

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing
R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of
separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A.
No. 7924.

On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his "voluntary option to be separated from
the service" his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be
entitled to "separation benefits equivalent to one and one-fourth (1¼) monthly salary for every year of service as provided under Section 11
of the MMDA Law."

In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted
that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years
of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under
R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.

On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioner’s separation pay
must be in accordance with Civil Service Resolution No. 92-063, pertinent portions of which read:

[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when
officers and employees who were previously granted said benefits are rehired or reemployed in another government Agency or Office.
Thus, there is no need for separated employees to refund the separation/retirement benefits they received when subsequently reemployed
in another government agency or office.
… This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in
the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement
benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the employee concerned. Moreover, in
this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement
pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay
received.

His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.

On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioner’s
appeal. Citing Chaves v. Mathay,3 it held that petitioner cannot be paid retirement benefits twice – one under R.A. No. 910, as amended,
and another under R.A. No. 7924 – for the same services he rendered as MeTC Judge. He can only exercise one of two options in the
computation of his separation pay under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No. 910, as
amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2
months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and
one-fourth salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he
received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former
MMA for his entire government service.

On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner’s motion for reconsideration. Accordingly, petitioner filed
with the Court of Appeals a petition to set aside these Resolutions.

On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the CSC was "correct in
dismissing petitioner’s appeal from the opinion of Director Acebedo." It ratiocinated as follows:

There is no specific rule of law which applies to petitioner’s case. Nevertheless, the Court finds it equitable to deny his claim for payment of
separation pay at the rate of one and one-fourth (1¼) month’s salary for every year of his service in government, that is, inclusive of the
number of years he served as Judge of the Metropolitan Trial Court of Manila [sic].

Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge. Equity dictates
that he should no longer be allowed to receive further gratuity for said years of service in the guise of separation pay.

Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service.
The State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that
is what retirement benefits are for. Rewards [are] given to an employee who has given up the best years of his life to the service of his
country (Gov’t. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188).

Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro
Manila Authority (MMA), another chapter of petitioner’s government service which has come to a close by the reorganization of the MMA
into the Metropolitan Manila Development Authority.

The Court, in limiting the computation of petitioner’s separation pay to the number of years of his service at the MMA, merely is
implementing the ruling in "Chavez, Sr. vs. Mathay" (37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing
to its "common-sense consideration." Said ruling reads:

"The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his
years of service under his first retirement in computing his gratuity under his secondretirement, it is but just that the retirement gratuity
received by him under his first retirement should also be charged to his account, manifestly govern the case at bar.1ªvvph!1 It is but in
accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double
retirement or pension such as petitioner’s, ‘would run roughshod over the well-settled rule that in the absence of an express legal
exception, pension and gratuity laws should be so construed as to preclude any person from receiving double pension.’ (p. 780,
underscoring supplied)

The case at bench is not, strictly speaking, about ‘double pension.’ It is, however, about the interpretation of a gratuity law, viz., Section 11
of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of the
MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same years of
service.

We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing
or determining petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and
that his separation pay should be solely confined to his services in the MMA.

In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of "one and one-fourth (1¼)
months of salary for every year of service" cannot by any stretch of logic or imagination be interpreted to refer to the total length of service
of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the grant of
separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA.
The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is
settled that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices.4 However,
the power to abolish is subject to the condition that it be exercised in good faith. 5 The separation partook of the nature of a disturbance of
compensation; hence, the separation pay must relate only to the employment thus affected.

Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he were
convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his
previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:

Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder.

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as
amended; and five years thereafter he has been receiving a monthly pension.

The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts
another government position to which another compensation is attached.6

Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute
double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct
MMA as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary
was his compensation for his services as Director III of the MMA.

However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the
fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double
compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against
double compensation for exactly the same services.7 More important, it would be in violation of the first paragraph of Section 8 of Article IX-
B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:

No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically
authorized by law… .

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of
the MMA.

WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the
decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

14. Hilario Dimagiba vs. Jolita Espartero, July 16, 2012

G.R. No. 154952 July 16, 2012

HILARION F. DIMAGIBA, IRMA MENDOZA, and ELLEN RASCO, Petitioners,

vs.
JULITA ESPARTERO, MA. BERNARDITA L. CARREON and MELINA SAN PEDRO, Respondents.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari are the Decision1 dated May 30, 2002 and the Resolution2 dated August 28, 2002 of the
Court of Appeals issued in CA-G.R. SP No. 61261.

Petitioners Hilarion Dimagiba (Dimagiba), Irma Mendoza (Mendoza), and Ellen Rasco (Rasco) were employees of The Livelihood
Corporation (LIVECOR), a government-owned and controlled corporation created under Executive Order No. 866. Petitioner Dimagiba was
the Group Manager, Asset Development and Management Group; petitioner Mendoza was the

Division Chief III, Asset Development and Management Group; and petitioner Rasco was the Project Evaluation Officer IV, Asset
Development and Management Group.
On March 8, 1990, LIVECOR and the Human Settlement Development Corporation (HSDC), now known as Strategic Investment and
Development Corporation (SIDCOR), also a government-owned and controlled corporation, created under Presidential Decree (P.D.)
1396, entered into a Trust Agreement3 whereby the former would undertake the task of managing, administering, disposing and liquidating
the corporate assets, projects and accounts of HSDC. In HSDC Board Resolution No. 3-26-A4 dated March 26, 1990, it was provided that
in order to carry out the trust agreement, LIVECOR personnel must be designated concurrently to operate certain basic HSDC/SIDCOR
functions, thus, LIVECOR personnel, namely, petitioners Dimagiba and Mendoza were designated as Assistant General Manager for
Operations and Head, Inter-Agency Committee on Assets Disposal and as Treasurer and Controller, respectively. The same resolution
provided for the designees' monthly honoraria and commutable reimbursable representation allowances (CRRA). Petitioner Rasco was
designated as Technical Assistant to the Officer-in-Charge (OIC), also with CRRA, under HSDC Board Resolution No. 05-19-B5 dated May
19, 1993.

In a letter6 dated November 14, 1997, the Department of Budget and Management informed LIVECOR of the approval of its
organization/staffing pattern modifications which resulted in the abolition of petitioners' positions. As a result, petitioners were separated
from the service effective June 30, 1998 and were each given a separation package7 as follows:

Dimagiba Mendoza Rasco

1. Separation Pay ₱608,580.00 ₱815,021.91 ₱519,125.16

2. Gratuity Pay 165,600.00 132,150.00 112,555.00

3. Terminal Pay 352,075.48 58,398.18 22,633.25

4. Last Month
Gross Salary 17,410.00 15,815.00 13,555.50

5. Service Award 10,000.00 10,000.00 10,000.00

TOTAL ₱1,153,665.48 ₱1,031,385.00 ₱678,169.91

The HSDC resolved to terminate petitioners' services because the latter's separation from LIVECOR would no longer allow them to
perform their functions at the HSDC. However, the HSDC, through its OIC, Jose Rufino, wrote the Office of the Government Corporate
Counsel (OGCC) and sought its opinion on the legality of HSDC's granting gratuity pay to petitioners.

On April 8, 1998, the OGCC rendered Opinion No. 078,8 series of 1998, which resolved among others the grant of gratuity pay to
petitioners. The OGCC found that it is within the power of the Board to grant reasonable Gratuity Pay/Package to petitioners subject to the
usual rules of the

Commission on Audit (COA) pertaining to allowances/benefits and disbursements of funds.

On May 19, 1998, the HSDC Board passed Resolution No. 05-19-A9 terminating petitioners' services but resolved to grant petitioners their
Gratuity Package/Pay, as follows:

1. MR. HILARION DIMAGIBA is hereby granted a Gratuity Package as follows:

1.1 Gratuity Pay in the amount of SEVEN HUNDRED THOUSAND PESOS (P700,000.00);

1.2 Termination of LBP Lease Agreement No. 282-C/Lease Schedule I (Nissan Sentra UDC 919) effective 15 July
1998 in favor of Mr. Dimagiba, with Mr. Dimagiba paying LBP Leasing Corporation all charges, fees penalties, etc.,
including pre-termination charges;

2. MS. IRMA MENDOZA is hereby granted a Gratuity Pay in the amount of ONE HUNDRED EIGHTY THOUSAND
(P180,000.00) PESOS;

3. MS. ELLEN RASCO is hereby granted a Gratuity Pay in the amount of SIXTY THOUSAND PESOS (P60,000.00).

RESOLVED FURTHER, That the total budgetary requirement and disbursement of the above Gratuity Pay is hereby approved and
allocated from Corporate Funds;

RESOLVED FINALLY, That the Officer-in-Charge and the Trustee of corporate funds are hereby directed and authorized to disburse funds
and execute the necessary documentation, acts and deeds relative to the immediate and full implementation of this resolution. 10

In a Memorandum dated July 17, 1998 issued by LIVECOR Administrator Manuel Portes (Portes), it was stated that any payment of
gratuities by the HSDC/SIDCOR to LIVECOR officers concurrently performing HSDC functions shall not be processed without prior
clearance from him as the same shall be first cleared with the COA and OGCC to avoid any legal problem. Portes then sought the opinion
of LIVECOR’s Resident COA Auditor, Alejandro Fumar, regarding petitioners' claim for additional gratuity, who opined that such gratuity
payment would amount to double compensation.
Subsequently, petitioners wrote a letter11 dated July 29, 1998 addressed to Portes requesting for the processing of their HSDC gratuity
pay. Attached in their letter were OGCC Opinion No. 078 and a letter 12 from the Presidential Management Staff (PMS), dated June 29,
1998, concurring with the OGCC's opinion.

Portes then instructed respondent Atty. Ma. Bernardita L. Carreon (Carreon), Attorney IV of LIVECOR’s Legal Services Department and a
designated member of Special Task Force for HSDC, to draft a letter seeking clarification on OGCC Opinion No. 078. He likewise
requested the LIVECOR Legal Services Department to issue an opinion on the matter of petitioners' HSDC/SIDCOR gratuity pay.

In a Memorandum13 dated August 25, 1998 addressed to Portes, respondent Atty. Julita A. Espartero (Espartero), then LIVECOR'S Chief
Legal Counsel, wrote that petitioners' designation as HSDC officers would not entitle them to receive any gratuity pay because:

First, the purpose for which Mr. Dimagiba, Ms. Mendoza and Ms. Rasco were elected or designated as SIDCOR officers is already made
clear in the subject Resolution which provides as follows, viz: WHEREAS, in order to carry out the trust, LIVECOR personnel must be
designated/elected concurrently to operate certain basic SIDCOR corporate offices/positions.

The election or designation of Mr. Dimagiba, Ms. Mendoza and Ms. Rasco as SIDCOR officers were not intended to be independent of or
separate from their employment with LIVECOR but was made precisely because of their being LIVECOR personnel tasked to carry out the
Trust Agreement between SIDCOR and LIVECOR.

Second, Mr. Dimagiba, Ms. Mendoza and Ms. Rasco do not receive salaries or wages from SIDCOR but CRREs. This clearly shows that
they are not organic SIDCOR employees but, as heretofore indicated, LIVECOR officers merely holding concurrent positions in SIDCOR.

The reason for the above-mentioned arrangement (grant of CRREs and not salaries or wages) is that: "While dual appointments in two
government- owned corporations are permissible, dual compensation is not."

To allow Mr. Dimagiba, Ms. Mendoza and Ms. Rasco, therefore, to receive gratuity pay/package apart from what they are entitled to
receive or have already received from LIVECOR will be to subvert or indirectly circumvent the above-stated legal principle.

Third, not being organic SIDCOR employees but LIVECOR officers merely holding concurrent positions in SIDCOR, Mr. Dimagiba, Ms.
Mendoza and Ms. Rasco cannot be said to have been "separated" from SIDCOR.14

In the meantime, petitioners had requested respondent Melina San Pedro (San Pedro), LIVECOR's Financial Analyst, to sign and process
the disbursement vouchers for the payment of their gratuity pay but the latter refused to do so because of the adverse opinion of the
LIVECOR Legal Department and based on the memorandum issued by Portes.

In October 1998, Portes was replaced by Atty. Salvador C. Medialdea (Atty. Medialdea) to whom petitioners subsequently referred the
matter of their gratuity payment. In a letter15 dated June 14, 1999, Atty. Medialdea sought clarification from the OGCC regarding its Opinion
No. 078. The OGCC responded with the issuance of its Opinion No. 019, 16 s. 2000 on January 31, 2000, where it declared that HSDC
Resolution No. 05-19-A, granting gratuities in favor of petitioners, could not be implemented as the intended beneficiaries were prohibited
by law from receiving the same, citing Section 8 of Article IX-B of the Constitution, i.e., proscription on double compensation.

On October 27, 1998, petitioners filed with the Office of the Ombudsman a Complaint-Affidavit charging Administrator Portes, Atty.
Christine Tomas-Espinosa, Chief of Staff of the Office of the Administrator, respondents Espartero, Carreon, and San Pedro, with grave
misconduct, conduct prejudicial to the best interest of the service, inefficiency and incompetence in the performance of official functions,
and violation of Section 5 (a), Republic Act (RA) No. 6713.

In their complaint-affidavit, petitioners alleged that respondents conspired in refusing to release their gratuity pay and that such refusal for
an unreasonable length of time despite repeated demands constituted the offenses charged.

Respondents filed their respective Counter-Affidavits denying the charges against them. Respondent Espartero contended that her actions
relative to the processing of gratuity pay merely consisted of rendering an opinion that such gratuity would amount to double
compensation, while respondent Carreon alleged that her only participation with regard to petitioners' claims for additional gratuity was to
draft a letter addressed to the OGCC. On the other hand, respondent San Pedro claimed that her refusal to affix her signature on
petitioners' disbursement vouchers for the release of said gratuity pay was based on the memorandum of Administrator Portes preventing
LIVECOR officers and employees from acting on any claims for gratuity without the latter's prior approval.

On June 2, 2000, the Ombudsman rendered its Decision,17 the dispositive portion of which reads:

WHEREFORE, foregoing premises considered, respondents JULITA ESPARTERO, BERNARDITA CARREON and MELINA SAN PEDRO
are hereby found guilty of Gross Neglect of Duty, Oppression, Conduct Prejudicial to the Best Interest of Service, Inefficiency and
Incompetence, and Violation of Section 5 (a), Republic Act No. 6713, and are hereby meted out the penalty of DISMISSAL from the
service coupled with the accessory penalties of cancellation of their eligibilities, forfeiture of leave credits and retirement benefits as well as
disqualification of reemployment in the government service pursuant to Sections 9, 17 and 22, Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292.

On the contrary, the instant complaint against respondents MANUEL PORTES and CHRISTINE TOMAS-ESPINOSA is DISMISSED for
being moot and academic, they being already out of the government service without prejudice to any civil or criminal actions filed against
them.
Furthermore, pursuant to Section 15 (2), Republic Act No. 6770, the incumbent Administrator of the Livelihood Corporation and other
public officers concerned are hereby directed to facilitate the processing and payment of complainants’ gratuity in accordance with HSDC
Board Resolution No. 05-19-A, s. 1998.

The Honorable Administrator, Livelihood Corporation (LIVECOR), 7/F Hanston Building, Emerald Avenue, Pasig City, is hereby tasked to
implement this Decision in accordance with law informing this Office of the action taken thereon within ten (10) days upon receipt hereof.

Let copies of this Decision be furnished the Civil Service Commission for their guidance and reference.

SO ORDERED.18

In so ruling, the Ombudsman stated that the prohibition on double compensation would not apply to pensions or gratuities because they
are gifts or bounty given in recognition of the employees' past services. It found that the HSDC Board had the discretion and authority to
decide on matters which were within its competence and jurisdiction, such as granting of benefits and retirement gratuities to its officers
and employees. It concluded that payment of petitioners' gratuities did not involve judgment or discretion on LIVECOR's part, hence, a
ministerial act; and that Resolution No. 05-19-A which granted the gratuity pay to petitioners directed LIVECOR as HSDC's trustee to
disburse funds and execute the necessary documentation for the full implementation of the same.

Respondents filed their motions for reconsideration, which the Ombudsman disposed in an Order19 dated August 8, 2000 in this wise:

WHEREFORE, except as to the finding of guilt on respondent ESPARTERO’s alleged violation of Section 5 (a), Republic Act No. 6713, the
assailed June 23, 2000 DECISION is affirmed with finality.20

SO ORDERED.

On September 7, 2000, the Ombudsman issued an Order21 directing the implementation of its decision; thus, LIVECOR's Final Notice of
Dismissal from Service were subsequently served on respondents. Petitioners' gratuity pay were then released.

Respondents filed with the CA a petition for review under Rule 43 with application for a writ of preliminary mandatory injunction and/or
temporary restraining order (TRO) and/or writ of preliminary prohibitory injunction. The CA issued a TRO22 and later granted the writ of
preliminary injunction.23

On May 30, 2002, the CA rendered its assailed Decision, the dispositive portion of which reads:

WHEREFORE, the petition is hereby GRANTED and the assailed decision of the Office of the Ombudsman, dated June 2, 2000, and the
Order dated August 8, 2000, are REVERSED and SET ASIDE and judgment is hereby rendered:

1. Reinstating petitioners to their positions held prior to their dismissal from office with full backwages and benefits;

2. Ordering private respondents to return the gratuity packages received from HSDC; and

3. Granting a permanent and final injunction enjoining the Office of the Ombudsman from executing the assailed decision and
Order.24

The CA found that the gratuity packages received by petitioners from HSDC constituted the prohibited additional or double compensation
under the Constitution. It found no evidence to support the Ombudsman decision finding respondents guilty of the administrative charges
as they acted accordingly as public officers. Anent the issue of the timeliness of the filing of the petition, the CA ruled that petitioners filed
their appeal within the 15-day period prescribed under Section 4 of Rule 43 of the Rules of Court, relying on the case of Fabian v.
Desierto.25 However, since there was no clear pronouncement that appeals of Ombudsman decision in administrative cases cannot be
made under Section 4 of Rule 43, the dismissal of the petition on the ground that it was filed beyond the 10-day period provided under
Section 27 of RA 6770, or the Ombudsman Act of 1989, would result to glaring injustice to respondents; and that dismissal of appeals
purely on technical grounds is frowned upon especially if it will result to injustice.

Petitioners' motion for reconsideration was denied by the CA in a Resolution dated August 28, 2002.

Hence, this petition for review. Petitioners raise the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT GAVE DUE COURSE TO RESPONDENTS' PETITION
FOR REVIEW DESPITE BEING FILED BEYOND THE REGLEMENTARY PERIOD OF TEN (10) DAYS SET BY SECTION 27 OF
REPUBLIC ACT 6770.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE GRATUITIES GRANTED TO PETITIONERS
DIMAGIBA, MENDOZA AND RASCO BY HSDC CONSTITUTE DOUBLE COMPENSATION PROHIBITED UNDER ARTICLE IX (B),
SECTION 8 OF THE 1987 CONSTITUTION DESPITE THE FACT THAT SAID GRATUITIES CLEARLY FALL UNDER THE EXCEPTION
UNDER THE SAME PROVISION.26

Anent the first issue, petitioners contend that the CA erred in acting on the petition which was filed beyond the 10-day reglementary period
for filing the same as provided under Section 27 of RA 6770. They claim that respondents received the Ombudsman order denying their
motion for reconsideration on August 25, 2000 and filed a motion for extension of time with the CA on September 11, 2000, which was the
15th day from receipt of the order, relying on our ruling in Fabian v. Desierto 27 and Rule 43 of the Rules of Court. Petitioners cite the cases
of Lapid v. CA28 and Barata v. Abalos, Jr.29 to support the application of the 10-day period for filing the petition in the CA from receipt of the
Ombudsman order.

We are not persuaded.

Section 27 of RA 6770 provides as follows:

Section 27. Effectivity and Finality of Decisions. - All provisionary orders of the Office of the Ombudsman are immediately effective and
executory.

xxxx

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The then Rules of Procedure of the Office of the Ombudsman likewise contain a similar provision. Section 7, Rule III of Administrative
Order (A.O.) No. 0730 provides as follows:

Sec. 7. Finality and Execution of Decision - Where the respondent is absolved of the charge and in case of conviction where the penalty
imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision
shall be final, executory and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from
receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in
Section 27 of R.A. 6770.

In Fabian v. Desierto,31 we declared unconstitutional Section 27 of RA 6770 and Section 7, Rule III of A.O. No. 7 and any other provision of
law implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court. We held that such provision was violative of Section 30, Article VI of the Constitution as it expanded
our appellate jurisdiction without our advice and concurrence; and that it was also inconsistent with Section 1, Rule 45 of the Rules of
Court which provides that a petition for review on certiorari shall apply only to a review of judgments or final orders of the Court of Appeals,
the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law. We then said:

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with
the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from
decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions
of Rule 43.32

Subsequently, in Lapid v. CA33 which involved the issue of whether or not the decision of the Ombudsman finding then Governor Manuel
Lapid administratively liable for misconduct and imposing on him a penalty of one year suspension without pay is immediately executory.
We then ruled:

x x x The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 of the
Rules of Court as the proper mode of appeal. All other matters included in said Section 27, including the finality or non-finality of decisions,
are not affected and still stand.34

Thus, we said that since the penalty imposed on Lapid which was one year suspension was not among those enumerated under Section
27 as final and unappealable, an appeal timely filed by Lapid will stay the immediate implementation of the decision of the Ombudsman
appealed from.

Later came the case of Barata v. Abalos, Jr.35 which was decided in 2001. The issue brought to us then was whether the CA committed
grave abuse of discretion in ruling that the Ombudsman decision exonerating respondent Mayor Abalos, Jr. of an administrative charge is
not appealable, which we answered in the negative. We also said that even on the assumption that appeal is allowed, the same can no
longer prosper, thus:

This notwithstanding, even on the assumption that appeal is allowed, the same can no longer prosper. As correctly pointed out by private
respondent, since the Order dated September 10, 1999 of the Ombudsman denying the motion for reconsideration was received by
petitioner on October 15, 1999, petitioner had until October 25, 1999 to appeal in accordance with Section 27, R.A. 6770 or at the most,
until November 24, 1999, if he availed of the 30-day extension provided under Section 2, Rule 43 of the 1997 Rules on Civil Procedure.
However, the petition was filed with the Court of Appeals only on February 1, 2000, way beyond the reglementary period. 36

Thus, it appeared that the period provided under Section 27 of RA 6770 which is ten days must be observed in filing a petition with the CA
assailing the Ombudsman decision in administrative case.
In this case, respondents filed with the CA their motion for extension of time to file petition for review under Rule 43 on September 11,
2000, i.e., on the 15th day from receipt of the Ombudsman order denying their motion for reconsideration, and filed the petition on
September 19, 2000. At the time the petition was filed, the matter of which reglementary period must apply, whether 10 days under Section
27 of RA 6770 or 15 days under Section 4, Rule 43 of the Rules of Court, had not been established with definiteness until the Barata case
was decided later. Considering that the Fabian ruling stated that Rule 43 of the Rules of Court should be the proper mode of appeal from
an Ombudsman decision in administrative cases, and Section 4 of Rule 43 provides for 15 days from receipt of the order appealed from,
the motion for extension to file petition which was filed on the 15th day from receipt of the Ombudsman order is considered timely filed.

Moreover, as correctly stated by the CA, dismissal of appeals on purely technical ground is frowned upon especially if it will result to
unfairness as in this case. In Baylon v. Fact-Finding Intelligence Bureau,37 we cited reasons or justifications to resist the strict adherence to
procedure, to wit: (1) matters of life, liberty, honor and property; (2) counsel's negligence without the participatory negligence on the part of
the client; (3) the existence of special or compelling circumstances; (4) the merits of the case; (5) a cause not entirely attributable to the
fault or negligence of the party favored by the suspension of the rules; (6) a lack of any showing that the review sought is merely frivolous
and dilatory; and (7) the other party will not be unjustly prejudiced thereby.

Here, the Ombudsman found respondents guilty of the charges filed against them and imposed upon them the penalty of dismissal from
the service. The penalty of dismissal is a severe punishment, because it blemishes a person's record in government service.38 It is an injury
to one's reputation and honor which produces irreversible effects on one's career and private life. Worse, it implies loss of livelihood to the
employee and his family.39 If only to assure the judicial mind that no injustice is allowed to take place due to a blind adherence to rules of
procedure, the dismissal on technicality of respondents' petition, which is aimed at establishing not just their innocence but the truth,
cannot stand.40

As to the second issue, petitioners contend that the gratuity given to them by the HSDC Board cannot be considered as additional or
double compensation which is prohibited by the Constitution.

We find no merit in this argument.

The additional grant of gratuity pay to petitioners amounted to additional compensation prohibited by the Constitution.

As provided under Section 8 of Article IX-B of the 1987 Constitution:

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign
government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

Clearly, the only exception for an employee to receive additional, double and indirect compensation is where the law allows him to receive
extra compensation for services rendered in another position which is an extension or is connected with his basic work. The prohibition
against additional or double compensation, except when specifically authorized by law, is considered a "constitutional curb" on the
spending power of the government. In Peralta v. Mathay,41 we stated the purpose of the prohibition, to wit:

x x x This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government
official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of course
entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The
intrusion of the thought of private gain should be unwelcome. The temptation to further personal ends, public employment as a means for
the acquisition of wealth, is to be resisted. That at least is the ideal. There is then to be awareness on the part of an officer or employee of
the government that he is to receive only such compensation as may be fixed by law. With such a realization, he is expected not to avail
himself of devious or circuitous means to increase the remuneration attached to his position.42x x x

The gratuity pay being given to petitioners by the HSDC Board was by reason of the satisfactory performance of their work under the trust
agreement. It is considered a bonus and by its very nature, a bonus partakes of an additional remuneration or compensation. 43 It bears
stressing that when petitioners were separated from LIVECOR, they were given separation pay which also included gratuity pay for all the
years they worked thereat and concurrently in HSDC/SIDCOR. Granting them another gratuity pay for the works done in HSDC under the
trust agreement would be indirectly giving them additional compensation for services rendered in another position which is an extension or
is connected with his basic work which is prohibited. This can only be allowed if there is a law which specifically authorizes them to receive
an additional payment of gratuity. The HSDC Board Resolution No. 05-19-A granting petitioners’ gratuity pay is not a law which would
exempt them from the Constitutional proscription against additional, double or indirect compensation.

Neither does the HSDC law under P.D. 1396 contain a provision allowing the grant of such gratuity pay to petitioners.1âwphi1 Section 9 of
P.D. 1396 provides:

Section 9. Appointment, Control and Discipline of Personnel. – The Board, upon recommendation of the General Manager of the
Corporation, shall appoint the officers, and employees of the Corporation and its subsidiaries; fix their compensation, allowances and
benefits, their working hours and such other conditions of employment as it may deem proper; grant them leaves of absence under such
regulations as it may promulgate; discipline and/or remove them for cause; and establish and maintain a recruitment and merit system for
the Corporation and its affiliates and subsidiaries.
The above-quoted provision applies to the persons appointed as employees of the HSDC and does not extend to petitioners who were
LIVECOR employees merely designated in HSDC under a trust agreement. The fact that they were not HSDC employees was
emphatically stated in Resolution No. 3-26-A passed by the HSDC Board of Directors on March 26, 1990, where it was provided that "in
order to carry out the trust agreement, LIVECOR personnel must be designated/elected concurrently to operate certain basic SIDCOR
corporate offices and positions."

Petitioners claim that the proscription against double compensation does not include pensions and gratuity.1âwphi1

We are not persuaded. We quote with approval what the CA said, thus:

The second paragraph of Section 8, Article IX specifically adds that "pensions and gratuities shall not be considered as additional, double
or indirect compensation." This has reference to compensation already earned, for instance by a retiree. A retiree receiving pensions or
gratuities after retirement can continue to receive such pension or gratuity even if he accepts another government position to which
another compensation is attached.

The grant to designees Dimagiba et al. of another gratuity from HSDC would not fall under the exception in the second paragraph as the
same had not been primarily earned, but rather being granted for service simultaneously rendered to LIVECOR and HSDC. Hence, to
allow the release of the second gratuity from HSDC would run afoul over the well-settled rule that "in the absence of an express legal
exception, pension or gratuity laws should be construed as to preclude any person from receiving double compensation. 44

We thus find no reversible error committed by theCA in granting the petition filed by respondents and reversing the Ombudsman decision
finding them guilty of the administrative charges.

WHEREFORE, the petition for review is DENIED. The Decision dated May 30, 2002 and the Resolution dated August 28, 2002 of the
Court of Appeals are hereby AFFIRMED.

SO ORDERED.

15. CSC vs. Dacuycoy, April 29, 1999

G.R. No. 135805 April 29, 1999

CIVIL SERVICE COMMISSION, petitioner,

vs.
PEDRO O. DACOYCOY, respondent.

PARDO, J

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of Appeals ruling
that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Commission's resolution
dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.

The facts may be succinctly related as follows:

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil
Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism. 1

After a fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent, and,
on March 5, 1996, issued the corresponding formal charge against him.2 Accordingly, the Civil Service Commission conducted a formal
investigation, and, on January 28, 1997, the Civil Service Commission promulgated its resolution finding no substantial evidence to support
the charge of habitual drunkenness and misconduct. However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty
of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively,
and their assignment under his immediate supervision and control as the Vocational School Administrator as Balicuatro College of Arts and
Trades, and imposed on him the penalty of dismissal from the service.3

On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; 4 however, on May 20, 1997, the Civil Service Commission
denied the motion. 5

On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunction6 to set
aside the Civil Service Commission's resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission,
ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court further
held that it is "the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act." 7

Hence, this appeal.

On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice. 8 On December 11, 1998,
respondent filed his comment.

We give due course to the petition.

The basic issue raised is the scope of the ban on nepotism.

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the
penalty of dismissal from the service.

The law defines nepotism9 as follows:

Sec. 59. Nepotism. — (1) All appointments to the national, provincial, city and municipal governments or in any branch
or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.

As used in this Section, the word "relative" and members of the family referred to are those related within the third
degree either of consanguinity or of affinity.

(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however,
That in each particular instance full report of such appointment shall be made to the Commission.

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office, and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending
authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third
civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the
appointee.

Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that
he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In
fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's
authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and
emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS
Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclag's immediate supervision. On July 1,
1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. On
January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that
"funds are available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory". On the other
hand, his son Ped stated in his position description form that his father was "his next higher supervisor". The circumvention of the ban on
nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school
administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr.
Daclag recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as
driver and utility worker of the school. Both positions are career positions.

To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the
appointment of his two sons. Clearly, he is guilty of nepotism.

At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision
of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the
Court of Appeals from the decision of the Civil Service Commission adverse to him. 10 He was the respondent official meted out the penalty
of dismissal from the service. On appeal to the Court of Appeals the court required the petitioner therein, here respondent Dacoycoy, to
implead the Civil Service Commission as public respondent11 as the government agency tasked with the duty to enforce the constitutional
and statutory provisions on the civil service.12

Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism.
Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not
guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. 13 Consequently, the Civil Service
Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an
aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. 14 By this ruling, we now expressly abandon and
overrule extant jurisprudence that "the phrase 'party adversely affected by the decision' refers to the government employee against whom
the administrative case is filed for the purpose of disciplinary action which, may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office"15 and not included are "cases where the penalty imposed is suspension for not more than thirty
(30) days or fine in an amount not exceeding thirty days salary"16 or "when the respondent is exonerated of the charges, there is no
occasion for appeal."17 In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of
decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; 18 Mendez
v. Civil Service Commission;19 Magpale v. Civil Service Commission;20 Navarro v. Civil Service Commission and Export Processing Zone
Authority 21 and more recently Del Castillo v. Civil Service Commission. 22

The Court of Appeals' reliance on Debulgado vs. Civil Service Commission,23 to support its ruling is misplaced. The issues in Debulgado
are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original
appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly
limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in
Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: . . . The public policy
embodied in Section 59 is clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that important
public policy by introducing a qualification here or a distinction there. 24

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that "[T]the basic
purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive
one."25 "The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive."26 If not
within the exceptions, it is a form of corruption that must be nipped in the bud or abated whenever or wherever it raises its ugly head. As
we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the "outstanding" civil servants, but also to
plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any
occasion for graft or circumvention of the law." 27

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711.

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and
September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

No costs.

SO ORDERED.

16. CSC vs. Cortes, April 23, 2014

G.R. No. 200103 April 23, 2014

CIVIL SERVICE COMMISSION, Petitioner,

vs.
MARICELLE M. CORTES, Respondent.

DECISION

ABAD, J.:

This case concerns the validity of appointment by the Commission En Banc where the appointee is the daughter of one of the
Commissioners.

The Facts and the Case

On February 19, 2008 the Commission En Banc of the Commission on Human Rights (CHR) issued Resolution A 2008-19 approving the
appointment to the position of Information Officer V (IO V) of respondent Maricelle M. Cortes. Commissioner Eligio P. Mallari, father of
respondent Cortes, abstained from voting and requested the CHR to render an opinion on the legality of the respondent's appointment.

In a Memorandum dated March 31, 2008, CHR Legal Division Chief Atty. Efren Ephraim G. Lamorena rendered an opinion that respondent
Cortes' appointment is not covered by the rule on nepotism because the appointing authority, the Commission En Banc, has a personality
distinct and separate from its members. CHR Chairperson Purificacion C. Valera Quisumbing, however, sent respondent a letter on the
same day instructing her not to assume her position because her appointment is not yet complete.

On April 4, 2008 the Civil Service Commission-NCR (CSC-NCR) Field Office informed Chairperson Quisumbing that it will conduct an
investigation on the appointment of respondent Cortes.

On April 9, 2008 Velda E. Cornelio, Director II of the CSC-NCR Field Office informed Chairperson Quisumbing that the appointment of
respondent Cortes is not valid because it is covered by the rule on nepotism under Section 9 of the Revised Omnibus Rules on
Appointments and Other Personnel Actions. According to the CSC-NCR, Commissioner Mallari is considered an appointing authority with
respect to respondent Cortes despite being a mere member of the Commission En Banc.

Respondent Cortes appealed the ruling of Director Cornelio but the same was denied on September 30, 2008.

Consequently, respondent Cortes filed a petition for review on November 24, 2008 before the CSC.

On March 2, 2010 the CSC issued Resolution 10-0370 where it denied the petition and affirmed the nepotic character of respondent
Cortes’ appointment. Respondent Cortes filed a Motion for Reconsideration but the same was denied in Resolution 10-1396 dated July 12,
2010.

Consequently, in a letter dated August 10, 2010, CHR Commissioner and Officer-in-Charge Ma. Victoria V. Cardona terminated
respondent’s services effective August 4, 2010.

On August 16, 2010, respondent Cortes filed a Petition for Review with Prayer for Issuance of Temporary Restraining Order and/or Writ of
Preliminary Injunction with the Court of Appeals (CA).

On August 11, 2011, the CA rendered its Decision granting the petition and nullified Resolution 10-0370 dated March 2, 2010 and 10-1396
dated July 12, 2010. The CA also ordered that Cortes be reinstated to her position as IO V in the CHR.

Petitioner filed a Motion for Reconsideration but the same was denied by the CA in a Resolution dated January 10, 2012.

Hence, this petition.

Issue of the Case

Whether or not the CA erred when it ruled that the appointment of respondent Cortes as IO V in the CHR is not covered by the prohibition
against nepotism.

Ruling of the Court

The petition is impressed with merit.

Nepotism is defined as an appointment issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the
following: (1) appointing authority; (2) recommending authority; (3) chief of the bureau or office; and (4) person exercising immediate
supervision over the appointee.1 Here, it is undisputed that respondent Cortes is a relative of Commissioner Mallari in the first degree of
consanguinity, as in fact Cortes is the daughter of Commissioner Mallari.

By way of exception, the following shall not be covered by the prohibition: (1) persons employed in a confidential capacity; (2) teachers; (3)
physicians; and (4) members of the Armed Forces of the Philippines. 2 In the present case, however, the appointment of respondent Cortes
as IO V in the CHR does not fall to any of the exemptions provided by law.

In her defense, respondent Cortes merely raises the argument that the appointing authority referred to in Section 59 of the Administrative
Code is the Commission En Banc and not the individual Commissioners who compose it.

The purpose of Section 59 on the rule against nepotism is to take out the discretion of the appointing and recommending authority on the
matter of appointing or recommending for appointment a relative. The rule insures the objectivity of the appointing or recommending official
by preventing that objectivity from being in fact tested.3Clearly, the prohibition against nepotism is intended to apply to natural persons. It is
one pernicious evil impeding the civil service and the efficiency of its personnel.4

Moreover, basic rule in statutory construction is the legal maxim that "we must interpret not by the letter that killeth, but by the spirit that
giveth life." To rule that the prohibition applies only to the Commission, and not to the individual members who compose it, will render the
prohibition meaningless. Apparently, the Commission En Banc, which is a body created by fiction of law, can never have relatives to speak
of.

Indeed, it is absurd to declare that the prohibitive veil on nepotism does not include appointments made by a group of individuals acting as
a body.1âwphi1 What cannot be done directly cannot be done indirectly. This principle is elementary and does not need explanation.
Certainly, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.
In the present case, respondent Cortes' appointment as IO V in the CHR by the Commission En Banc, where his father is a member, is
covered by the prohibition. Commissioner Mallari's abstention from voting did not cure the nepotistic character of the appointment because
the evil sought to be avoided by the prohibition still exists. His mere presence during the deliberation for the appointment of IO V created
an impression of influence and cast doubt on the impartiality and neutrality of the Commission En Banc.

WHEREFORE, the instant petition is GRANTED. The Decision dated August 11, 2011 and Resolution dated January 10, 2012 of the Court
of Appeals in CA-G.R. SP 115380 are REVERSED and SET ASIDE. The Resolution of the Civil Service Commission dated March 2, 2010
affirming the CSC-NCR Decision dated September 30, 2008 invalidating the appointment of respondent Maricelle M. Cortes for being
nepotistic is hereby REINSTATED.

SO ORDERED.

17. Debulgado vs. CSC, 237 SCRA 186, 1994

G.R. No. 111471 September 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,

vs.
CIVIL SERVICE COMMISSION, respondent.

Marlon P. Ontal for petitioners.

FELICIANO, J.:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992, petitioner
Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the Office of General
Services 1 of the City Government of San Carlos.

Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of General Services
Officer. Before her promotion in 1992, she had been in the service of the City Government for about thirty-two (32) years. She joined the
City Government on 3 January 1961 as Assistant License Clerk. Through the years, she rose from the ranks, successively occupying the
following positions:

(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;

(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;

(c) Cashier, from 2 January 1981 to 30 June 1989; and

(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2

On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General Services
Officer of San Carlos City and receiving the regular salary attached to that position.

On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3 from Congressman Tranquilino B.
Carmona of the First District of Negros Occidental, calling attention to the promotional appointment issued by petitioner Mayor in favor of
his wife.

The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner Victoria.

From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that petitioner Mayor was the
lawful husband of the appointee, petitioner Victoria, the two (2) having been married sometime in 1964. Director Caberoy also reported that
the appointment papers prepared by the Office of the City Mayor of San Carlos were submitted to the Bacolod City CSC-Field Office on 28
October 1992, and that the appointment was thereafter approved by Director Purita H. Escobia of that CSC-Field Office, on 18 November
1992.

Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April 1993, recalled the approval issued
by Director Escobia and disapproved the promotion of petitioner Victoria to the position of General Services Officer of San Carlos City
upon the ground that that promotion violated the statutory prohibition against nepotic appointments.

On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of the Commission. 4 Petitioners
moved for reconsideration, contending that the statutory prohibition against nepotism was not applicable to the appointment of Victoria as
General Services Officer. Petitioners also asserted that the Commission had deprived petitioner Victoria of her right to due process by
unilaterally revoking her appointment. The motion for reconsideration was denied by the Commission on 21 July 1993.
In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely abused its discretion in
withdrawing and disapproving petitioner Victoria's promotional appointment. Petitioners assert that Victoria can no longer be removed from
the position of General Services Officer without giving her an opportunity to be heard and to answer the charged of nepotism.

Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post. He states that his
wife was the most qualified among the candidates for appointment to that position, she having worked for the City Government for thirty-
two (32) years and being highly recommended by the OIC-Treasurer of San Carlos City. 5 It is also claimed by petitioner Mayor that his
choice of his wife for the position was concurred in by the Sangguniang Panglungsod. 6 He further avers that he had consulted the Field
and Regional Officers of the Commission in Bacolod City, and raised the question of applicability of the prohibition against nepotism to the
then proposed promotion of his wife in one of the seminars conducted by the Commission's Regional Office held in San Carlos City on 21
and 22 September 1992. According to petitioner Mayor, one Gregorio C. Agdon, a supervising personnel specialist in the Commission's
Bacolod Office, informed him that the promotional appointment was not covered by the prohibition. 7

The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original appointments and not
to promotional appointments. They believe that because petitioner Victoria was already in the service of the City Government before she
married petitioner Mayor, the reason behind the prohibition no longer applied to her promotional appointment. Petitioners also affirm that
petitioner Victoria deserves to be promoted to General Services Officer, considering her long and faithful service to the City Government. 8

The task before this Court is, accordingly, two-fold:

(1) to determine whether a promotional appointment is covered by the legal prohibition against nepotism, or whether
that prohibition applies only to original appointments to the Civil Service; and

(2) to determine whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner Victoria after the Commission, through Director Escobia, had earlier
approved that same appointment, without giving an opportunity to petitioner Victoria to explain her side on the matter.

The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised Administrative Code of 1987
(also known as E.O. No. 292). Section 59 reads as follows:

Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and municipal governments or in any branch
or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.

As used in this Section the word "relative" and members of the family referred to are those related within the third
degree either of consanguinity or of affinity.

(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however,
That in each particular instance full report of such appointment shall be made to the Commission.

The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his
or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein of both husband and wife may be allowed.

(3) In order to give immediate effect to these provisions, cases of previous appointment which are in contravention
hereof shall be corrected by transfer and pending such transfer, no promotion or salary increase shall be allowed in
favor of the relative or relatives who were appointed in violation of these provisions. (Emphasis supplied).

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil Service Laws,"
issued on 27 December 1991, implementing, among other things, the abovequoted Section 59, provides as follows:

Sec. 6. No appointments in the national, provincial, city and municipal government or in any branch or instrumentality
thereof, including government-owned or controlled corporations with original charters shall be made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising
immediate supervision over the appointee.

Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the members of the
family referred to are those related within the third degree either of consanguinity or of affinity.

The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential
capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the Philippines. Provided, however, That in
each particular instance full report of such appointment shall be made to the Commission.
 The restriction mentioned in the first paragraph of this Section shall not be applicable to the case of a member of any
family who after his or her appointment to any position in an office or bureau, contracts marriage with someone in the
same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.

Cases of previous appointment which are in contravention hereof shall be corrected by transfer, and pending such
transfer no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in
violation of these provisions. (Emphasis supplied)

It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the provisions of Section 59, Book V
of E.O. No. 292. 9

We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy fact may be pointed out, at the
outset, that Section 59 as it exists today has been in our statute books in substantially identical form and language for at least thirty (30)
years. 10

A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it
explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of appointments. Secondly,
Section 59 covers all appointments to the national, provincial, city and municipal government, as well as any branch or instrumentality
thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short
list:

(a) persons employed in a confidential capacity;

(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.

The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and other
similar positions." Thus, the list appears to us to be a closed one, at least closed until lengthened or shortened by Congress.

Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus Implementing Rules. Additional light is shed
on the issue we here address by some provisions of these Rules. Section 1, Rule V of the Omnibus Implementing Rules reads as follows:

Sec. 1. All appointments in the career service shall be made only according to merit and fitness to be determined as far
as practicable by competitive examinations.

As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be known
as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail, secondment,
reassignment, demotion and separation. All original appointments and personnel actions shall be in accordance with
these Rules and with other regulations and standards that may be promulgated by the Commission. (Emphasis
supplied)

Section 1, Rule VII of the same Rules also bears upon our inquiry:

Sec. 1. The following constitute personnel actions: original appointment, appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, secondment, demotion and separation. (Emphasis supplied)

Under the abovequoted provisions of the Implementing Rules, both an original appointment and a promotion are particular species of
personnel action. The original appointment of a civil service employee and all subsequent personnel actions undertaken by or in respect of
that employee such as promotion, transfer, reinstatement, reemployment, etc., must comply with the Implementing Rules including, of
course, the prohibition against nepotism in Rule XVIII. To the extent that all personnel actions occurring after an original appointment,
require the issuance of a new appointment to another position (or to the original position in case of reinstatement), we believe that such
appointment must comply with all applicable rules and prohibitions, including the statutory and regulatory prohibition against nepotism. To
limit the thrust of the prohibition against nepotism to the appointment issued at the time of initial entry into the government service, and to
insulate from that prohibition appointments subsequently issued when personnel actions are thereafter taken in respect of the same
employee, would be basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service Commission, 11 "meaningless and
toothless."

Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that prohibition was intended to
be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic policy which pervades all the provisions of our Civil Service
law, including Section 59 thereof:

Sec. 1. Declaration of Policy. — The State shall insure and promote the Constitutional mandate that appointments in
the Civil Service shall be made only according to merit and fitness; . . . (Emphasis supplied)

Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil service should be based on
merit and fitness and should never depend on how close or intimate an appointee is to the appointing power. 12

Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner Governor of Batangas Province
appointed or designated his brother, Benjamin Laurel, who had been holding a promotional appointment as Civil Security Officer, a position
classified as "primarily confidential" by the Civil Service, to the position of Provincial Administrator, a position in the Career Civil Service.
This Court held that the appointment or designation as Acting Provincial Administrator was violative of the prohibition against nepotism,
then embodied in Section 49, P.D. No. 807. Moreover, the Court emphatically agreed with the Civil Service Commission that "although
what was extended to Benjamin was merely a designation and not an appointment, . . . the prohibitive mantle on nepotism would include
designation, because what cannot be done directly, cannot be done indirectly:"

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is
nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver
to cushion the impact of its violation. The rule admits of no distinction between appointment and
designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate"
means "to indicate, select, appoint or set apart for a purpose of duty." (Black's Law Dictionary, Fifth ed., 402)

xxx xxx xxx

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if
a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the
prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely
designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service.
Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done
indirectly." 13 (Emphasis partly in the original and partly supplied; citation omitted)

Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.

One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable here because
petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is not disputed that the original
1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in
the 4th paragraph thereof, that the prohibition against nepotism is not

applicable to the case of a member of any family who, after his or her appointment to any position in any office or
bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention
therein of both husband and wife may be allowed. (Emphasis supplied)

The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of petitioner
Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to petitioner Victoria in 1
October 1982 that is at stake.

Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as applicable both to original
and promotional or subsequent appointments, would be to deprive the government of the services of loyal and faithful employees who
would thereby be penalized simply because the appointing or recommending official happens to be related to the employees within the
third degree of consanguinity or affinity.

A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an original or a promotion
appointment, may in fact be quite loyal and efficient and hard-working; yet that circumstance will not prevent the application of the
prohibition certainly in respect of the original appointment. The Court is not unaware of the difficulties that the comprehensive prohibition
against nepotism would impose upon petitioner Victoria and others who maybe in the same position. It is essential to stress, however, that
the prohibition applies quite without regard to the actual merits of the proposed appointee and to the good intentions of the appointing or
recommending authority, and that the prohibition against nepotism in appointments whether original or promotional, is not intended by the
legislative authority to penalize faithful service.

The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has remained for
decades, is precisely to take out of the discretion of the appointing and recommending authority the matter of
appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the appointing or
recommending official by preventing that objectivity from being in fact tested. The importance of this statutory objective is difficult to
overstress in the culture in which we live and work in the Philippines, where family bonds remain, in general, compelling and cohesive.

The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language: it refers to
"all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is clearly fundamental in importance,
and the Court has neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction
there.

It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the prohibited class of
appointments: the prohibited relationship between the appointing authority (petitioner Mayor) and the appointee (wife Victoria) existed at
the time the promotional appointment was issued. It is scarcely necessary to add that the reasons which may have moved petitioner Mayor
to issue the prohibited appointment are, as a matter of law, not relevant in this connection. 14

II
We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria was approved by
Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When petitioner Victoria took her oath of office and
commenced the discharge of the duties of a General Services Officer, she acquired a vested right to that position and cannot, according to
petitioners, be removed from that position without due process of law.

This argument misconceives the nature of the action taken by the respondent Commission. That action was not the imposition of an
administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There were no administrative charges in respect of
which petitioner Victoria would have been entitled to notice and hearing. The Commission, in approving or disapproving an appointment,
only examines the conformity of the appointment with applicable provisions of law and whether the appointee possesses all the minimum
qualifications and none of the disqualifications. At all events, as the Solicitor General has noted, petitioner Victoria was afforded an
opportunity to be heard when she filed a motion for reconsideration with the Commission and there challenged the disapproval by the
Commission.

The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292 and the relevant
Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria was a violation of Section 59, it was null
and void as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets out the principal legal consequence of
an appointment issued in disregard of the statutory prohibition:

Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and
shall remain in force and effect until disapproved by the Commission. However, an appointment may be void from the
beginning due to fraud on the part of the appointee or because it was issued in violation of law. (Emphasis supplied)

A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.

The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g., promotions. 15 Such
power includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and
regulations. Section 20 of Rule VI of the Omnibus Implementing Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following
grounds:

(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees relative to promotion; or

(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).

The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers, Director Escobia, was
accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being void "from the beginning." The approval issued
by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.

We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion, amounting to lack of excess of
jurisdiction on the part of respondent Commission.

Petitioners have also complained that the letter of Congressman Carmona which had precipitated action on the part of respondent
Commission, was not a verified letter. They contend that the Commission could not or should not have acted upon the charges raised in
that letter.

We are not aware of any law or regulation requiring the letter written by the Congressman to be subscribed under oath before the
Commission could act thereon. Under its own rules and regulations, the Commission may review motu proprio personnel actions involving
the position of a Division Chief or above, such as the position of General Services Officer. 16 We hold that the respondent Commission had
authority, indeed the duty, to recall on its own initiative the erroneous initial approval of the promotional appointment extended to petitioner
Victoria, and to review the same de novo.

WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

18. Laurel vs. Civil Service Commission, October 28, 1991

G.R. No. 71562 October 28, 1991

JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner,
vs.
CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.

Provincial Attorney for respondent.

RESOLUTION

DAVIDE, JR., J.:

Is the position of Provincial Administrator primarily confidential?

Does the rule on nepotism apply to designation?

May a private citizen who does not claim any better right to a position file a verified complaint with the Civil Service Commission to
denounce a violation by an appointing authority of the Civil Service Law and rules?

These are the issues raised in this petition.

The antecedent facts are not disputed.

Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin
Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and
confidential staff of an elective official. 1

On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice
the operation of the Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointme nt of a regular
Provincial Administrator, unless the designation is earlier revoked. 2

On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3

to bring to its attention the "appointment" of Benjamin Laurel as

On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4

Provincial Administrator of Batangas by the Governor, his brother. He alleges therein that: (1) the position in question is a career position,
(2) the appointment violates civil service rules, and (3) since the Governor authorized said appointee to receive representation allowance,
he violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated.

In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros, Acting Provincial Attorney of
Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the provision prohibiting nepotism under Section 49 of
P.D. No. 807 because, with respect to the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential
in nature; and, with respect to the position of Provincial Administrator:

. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil Serviceposition, like that of a
provincial administrator. Governor Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely
designated him "Acting Provincial Administrator." And "appointment" and "designation" are two entirely different things.
Appointment implies original establishment of official relation. Designation is the imposition of new or additional duties upon an
officer to be performed by him in a special manner. It presupposes a previous appointment of the officer in whom the new or
additional duties are imposed.

Appointment is generally permanent, hence the officer appointed cannot be removed except for cause; designation is merely
temporary and the new or additional powers may be withdrawn with or without cause.

Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor when Governor Laurel
designated him Acting Provincial Administrator.

It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:

As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-Circular No. 437, series of
1971, to a monthly representation allowance of P350.00. And said allowance is "strictly on reimbursement basis." 6

which, inter alia, revokes the designation of Benjamin as Acting

On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358 7

Provincial Administrator on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of
said section reads as follows:

SECTION 49. Nepotism. — (a) All appointments in the national, provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or
 recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are
hereby prohibited.

As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either
of consanguinity or affinity.

(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in a confidential capacity, (2)
teachers, (3) physicians, and (4) members of the Armed Forces of the Philippines: Provided, however, That in each particular
instance full report of such appointment shall be made to the Commission.

xxx xxx xxx

Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service Commission ruled that "the
prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." It further held
that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career)
shall perform the duties properly belonging to any position in the competitive service (now career service). The petitioner, therefore, could
not legally and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant and Civil
Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No. 5185.

Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is primarily confidential in nature,
having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service Commission maintains that said
position is not primarily-confidential in nature since it neither belongs to the personal staff of the Governor nor are the duties thereof
confidential in nature considering that its principal functions involve general planning, directive and control of administrative and personnel
service in the Provincial Office, petitioner filed the instant petition invoking the following grounds:

A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess of jurisdiction when it
held that the position of provincial administrator is not a primarily-confidential position because said ruling is diametrically
opposed to, and in utter disregard of rulings of this Honorable Court as to what is a primarily-confidential position under Article
XII-B, Sec. 2 of the Constitution.

B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it arrogated unto itself the power to
review a designation made by petitioner by virtue of the powers in him vested under Section 2077 of the Revised Administrative
Code.

C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private respondent and
thereafter promulgated the resolutions under question in this petition.

D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law available to petitioner to
have the questioned resolutions of respondent Commission reviewed and thereafter nullified, revoked and set aside, other than
this recourse to a petition for certiorari under Rule 65 of the Rules of Court.

In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains the challenged resolutions and
contends that the position of Provincial Administrator is intended to be part of the career system and since it requires a specific civil service
eligibility, it belongs to the career service under Section 5(1) of P.D. No. 807 and has not been declared primarily confidential by the
President pursuant to Section 1 of P.D. No. 868; that the Commission has the authority to review, disapprove, and set aside even
mere designations, as distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce the laws and rules
governing the selection, utilization, training and discipline of civil servants; and that it can act on Sangalang's complaint pursuant to Section
37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an administrative complaint to correct a violation of the Civil
Service law and rules which involved public service and the public interest. Per Benitez vs. Paredes, 10 reiterated in Tañada vs.
Tuvera, 11 where the question is one of public right, the people are regarded as the real parties in interest, and the relator at whose
instigation the proceedings are instituted need only show that he is a citizen and as such interested in the execution of the laws.

On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties, functions and responsibilities of the
Provincial Administrator render said position primarily confidential in nature; the requirement of a specific service eligibility and absence of
a presidential declaration that the position is primarily confidential do not place the said position in the career service; the position of
Provincial Administrator is in the non-career service; and that the Benitez vs. Paredes and Tañada vs. Tuvera cases are not applicable in
this case. Petitioner insists that the controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court held that there are
two instances when a position may be considered primarily confidential, to wit: (a) when the President, upon recommendation of the
Commissioner of Civil Service (now Civil Service Commission) has declared a position to be primarily confidential; and (2) in the absence
of such declaration, when by the very nature of the functions of the office, there exists close intimacy between the appointee and the
appointing power which insures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or
confidential matters of state and Piñero vs. Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959 Civil
Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a position is primarily confidential, policy
determining, or highly technical and that executive pronouncements can be no more than initial determinations that are not conclusive in
case of conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive to deny to any officer, by executive
fiat, the protection of section 4, Article XII of the Constitution."

In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in the Salazar and Piñerocases have been
modified and superseded by Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868, which provides:
 Any provision of law authorizing any official, other than the President, to declare positions policy-determining, primarily
confidential or highly technical which are exempt from the Civil Service Law and rules is hereby repealed, and only the President
may declare a position-determining, highly technical or primarily confidential, upon recommendation of the Civil Service
Commission, the Budget Commission and the Presidential Reorganization Commission.

The Solicitor General further asseverates that the Commissions' giving due course to the complaint of Sangalang is manifestly valid and
legal for it is also in accordance with the declared policies of the State provided for in Section 2 of P.D. No. 807.

In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties to submit simultaneous
memoranda.

We shall take up the issues in the order they are presented above.

1. The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D. No. 807 on nepotism
would not apply in the instant case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil Service
Commission dated 18 January 1983. 14

On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:

At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR .
. . (capitalization supplied for emphasis).

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation — only to appointment. He changed his mind only after the public respondent,
in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his
motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 14 31 of the Civil Code, through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. 15

But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial Administrator is primarily confidential, is without merit.

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the
qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:

Education : Bachelor's degree preferably in Law/Public or Business Administration.

Experience : Six years of progressively responsible experience in planning, directing and administration of provincial government
operations. Experience in private agencies considered are those that have been more or less familiar level of administrative
proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor).

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

xxx xxx xxx

2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and
local agencies in the province; and general planning, direction and control of the personnel functions and the administrative
services of the Governor's Office.

3. DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management, administrative and organizational work in the operation of provincial
government with highly complex, involved relationships with considerable delegation of authority and responsibility and a high
degree of public contact.

render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is
characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on
highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is
an open career position, for appointment to it requires prior qualification in an appropriate examination. 17 It falls within the second major
level of positions in the career service, per Section 7 of P.D. No. 807, which reads:

Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the career service appointment to which
requires examinations shall be grouped into three major levels as follows:

xxx xxx xxx

(2) The second level shall include professional, technical, and scientific positions which involve professional, technical, or
scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level;
...

In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:

It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy
determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the
discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the Constitution.

This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:

. . . and only the President may declare a position policy-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and
the Presidential Reorganization Commission.

for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare
what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Cons titution which was then in force at the time the
decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no
room for doubt that, indeed, it is the nature of the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution retains this rule when in Section 2 of Article IX-C, it
clearly makes reference to "positions which are policy-determining, primarily confidential, or highly technical."

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20 that Salazar vs. Mathay 21 and Piñero, et al. vs. Hechanova, et al., 22 have
already been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism.

We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial
Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a primarily
confidential position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as
Acting Provincial Administrator, a career position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties
properly belonging to any position in the competitive service (now career service).

2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a
person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest
to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary
appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. 23

Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on n epotism under Section 49 of P.D. No. 807. They are related within the third degree of
consanguinity and the case does not fall within any of the exemptions provided therein.

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:

By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. 24

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a
last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation.Designation is also defined as "an appointment or assignment to a particular office";
and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty. 25
In Borromeo vs. Mariano, 26 this Court said:

. . . All the authorities unite in saying that the term "appoint" is well-known in law and whether regarded in its legal or in its
ordinary acceptation, is applied to the nomination or designation of an individual . . . (emphasis supplied).

In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the term. However, where the person is merely designated and not
appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer
security of tenure on the person named.

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading
this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary;
hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely
accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D.
No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely
designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly
stated by public respondent, "what cannot be done directly cannot be done indirectly." 28

3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in
designating his brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the

with the power and function to

central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training an d discipline of civil servants, 29

administer and enforce the Constitutional and statutory provisions on the merit system. 30 Moreover, Section 37 of the decree expressly
allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which
case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation.
The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action
to be taken. This provision gives teeth to the Constitutional exhortation that a public office is a public trust and public officers and
employees must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who brings to the attention of the appropriate
office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises,
support and encouragement of society. The vigilance of the citizenry is vital in a democracy.

WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service Commission are AFFIRMED.

Costs against petitioner.

SO ORDERED.