FIRST DIVISION

REPUBLIC OF THE PHILIPPINES represented by the Department of Trade and Industry, Petitioner,

G.R. No. 149356

Present: PUNO, C.J., Chairperson, CARPIO, CORONA, AZCUNA, and LEONARDO-DE

- versus -

CASTRO, JJ.

WINSTON T. SINGUN, Respondent.

Promulgated: March 14, 2008

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DECISION

CARPIO, J.:

The Case

This

is

petition

for

review

on

certiorari[1] of

the 1

August

2001 Decision[2] of the Court of Appeals in CA-G.R. SP No. 64953. The 1 August 2001 Decision affirmed Civil Service Commission (CSC) Resolution 002651[3] and 010843[4] dated 27 November 2000 and 27 April Nos. 2001,

respectively. CSC Resolution No. 002651 held that respondent Winston T. Singuns (respondent) resignation was inoperative and inefficacious and ordered the payment of his salaries and other benefits from 1 January 2000. CSC Resolution No. 010843 denied petitioners motion for reconsideration.

The Facts

Petitioner Republic of the Philippines (petitioner) is represented by the Department of Trade and Industry, Regional Office No. 2 (DTI-RO2). Respondent was the former Chief Trade and Industry Development Specialist of DTIRO2, Cagayan Province.

In a letter[5] dated 20 October 1999, respondent wrote Regional Director Jose Hipolito (Director Hipolito) signifying his intention to apply for an 8 month leave of absence starting 16 November 1999 until 31 July 2000. Respondent also signified his intention to retire from the service on 1 August 2000. On 4 November 1999, respondent filed his application for leave of absence and early retirement.[6] Director Hipolito denied the request.

On 8 November 1999, respondent again filed an application for leave of absence and resignation.[7] In a the memorandum application dated 9 to November Assistant

1999, Director Hipolito endorsed

Secretary Zenaida C.Maglaya (Assistant Secretary Maglaya) for comment.[8]

On 12

November

1999,

without

waiting

for

Assistant

Secretary Maglayas comment, respondent again filed an application for leave of absence but for a shorter period from 16 November 1999 until 14 January 2000.[9] Respondent also signified his intention to resign effective at the close of office hours on 14 January 2000. According to Director Hipolito, he immediately approved respondents application for leave of absence and resignation and he reiterated said approval in a memorandum[10] dated the same day. In a letter[11] dated 23 November 1999, Director Hipolito also notified Regional Director Jose T. Soria (Atty. Soria) of the Civil Service Commission, Regional Office No. 2 (CSC-RO2) of his acceptance of respondents resignation.

Then on 14 January 2000, at about 4:00 p.m., the DTI-RO2 received, through facsimile, Memorandum Order No. 20[12] issued by Undersecretary Ernesto M. Ordoez (Undersecretary Ordoez) detailing respondent to the Office of the Undersecretary for Regional Operations effective 17 January 2000.

On 17 January 2000, the DTI-RO2 received respondents 14 January 2000 letter[13] informing Director Hipolitothat he was reconsidering his earlier letter of resignation and that he decided to wait until he could qualify for early retirement.

On 25 January 2000, Director Hipolito wrote Atty. Soria requesting an opinion on whether respondent was considered resigned as of 12 November 1999 and, hence, Undersecretary Ordoezs detail order was without effect.

In

CSC-RO2

Opinion

No.

LO-000202[14] dated 2

February

2000,

Atty. Soria ruled that respondent was considered resigned effective 14 January 2000. CSC-RO2 opined that respondent effectively resigned on that date because (1) of respondents voluntary written notice informing Director Hipolito that he was relinquishing his position and the effectivity date of said resignation and (2) Director Hipolitos acceptance of respondents resignation in writing which indicated the date of effectivity of the resignation. CSC-RO2 also said that respondents letter withdrawing his resignation did not automatically restore him to his position because Director Hipolito should first approve the withdrawal before it becomes effective.

In

letter[15] dated 11

February

2000,

Director Hipolito informed

Undersecretary Ordoez that respondent had resigned effective 14 January 2000 and, thus, the detail order was without effect. Director Hipolito added that during respondents leave of absence, respondent accepted employment with the Philippine Rural Banking Corporation (PRBC).

In

letter[16] dated 23

February

2000,

respondent

informed

Undersecretary Ordoez that his application for resignation was made under duress

because it was imposed by Director Hipolito as a condition for the approval of his application for leave of absence. Respondent explained that he did not intend to resign on 14 January 2000 as his original intention was to resign on 1 August 2000 after completing 15 years of service in the government. Respondent also stated that his resignation was ineffective because he was not notified of its acceptance for he did not receive a copy of his approved resignation letter and Director Hipolitos memorandum accepting his application for

resignation. Respondent added that even assuming he was duly notified of its acceptance, his resignation was still made under duress and, therefore, no amount of acceptance would make it valid.

On 2 March 2000, Undersecretary Ordoez required Director Hipolito to comment on respondents 23 February 2000 letter. Undersecretary Ordoez asked Director Hipolito to submit documentary evidence to show that respondent received a copy of Director Hipolitos formal acceptance in writing of respondents letter of resignation and that respondent was employed by PRBC during his leave of absence.

On 28 March 2000, respondent demanded from Director Hipolito the payment of his salaries and other benefits from 1 December 1999 to 31 March 2000.

On 5 April 2000, Undersecretary Ordoez ordered Director Hipolito to advise him as to respondents request for the payment of his unpaid salaries. Undersecretary Ordoez also asked Director Hipolito to support his claim that respondent was considered resigned effective 14 January 2000 with a ruling from the CSC.

In a letter[17] dated 18 April 2000, Atty. Soria asked Director Hipolito to comment on respondents 14 April 2000 letter[18] requesting for the reconsideration of CSC-RO2 Opinion No. LO-000202. In his

comment,[19]Director Hipolito denied that he forced, intimidated, threatened, and unduly pressured respondent to resign. DirectorHipolito also insisted that respondent received a copy of the 12 November 1999 memorandum regarding the acceptance of his resignation.

On 5 June 2000, the CSC-RO2 rendered Decision No. A-000601[20] denying respondents motion for reconsideration. CSC-RO2 ruled that respondent was considered resigned as of 14 January 2000 because the detail order made no mention that its issuance meant that the acceptance of the resignation was revoked. CSC-RO2 added that since Undersecretary Ordoez was not the appointing authority, he had no power to accept respondents withdrawal of his resignation.

Respondent appealed to the CSC.

The Ruling of the Civil Service Commission

On 27 November 2000, the CSC rendered Resolution No. 002651 declaring respondents resignation inoperative and inefficacious. The CSC also ordered the payment of respondents salaries and other benefits from CSC ruled:
There is no dispute that Singun tendered his resignation to Regional Director Hipolito to take effect on January 14, 2000. But it is likewise undisputed that on the very day that his cessation from office is to take effect, DTI Undersecretary Ordoez ordered his detail to his Office. This act of Undersecretary Ordoez, who is the immediate supervisor of Regional Director Hipolito, is a tacit, if not express, repudiation and revocation of the ostensible acceptance by the latter of the supposed resignation of Singun. This, in effect, can be construed as if no acceptance was ever made on the tender of resignation of Singun. Finally, even on the assumption that Singuns tender of resignation was indeed accepted, such acceptance is inoperative and inefficacious. This is so simply because there is no showing from the records that Singun was duly informed of said acceptance. In fact, there is no mention whatsoever that Singun was informed of the acceptance of his resignation. This being the case, it cannot be concluded that Singun had, either impliedly or expressly, surrendered, renounced, or relinquished his office. In explaining this precept, the Commission in CSC Resolution No. 00-2394 datedOctober 18, 2000, held: It is explicit that resignation, as a mode of terminating the employees official relations, is preconditioned on the (i) written notice of the concerned employee to sever his employment tie coupled with an act of relinquishing the office; and, (ii) acceptance by the appointing authority for which the employee shall have been properly notified...[21]

1 January 2000. The

On 15 December 2000, petitioner filed a motion for reconsideration. Two supplemental motions for reconsideration were subsequently filed on 12 January 2001[22] and 11 April 2001.[23] In Resolution No. 010843,[24] the CSC denied petitioners motion for reconsideration.

Petitioner appealed to the Court of Appeals.[25]

The Ruling of the Court of Appeals

On 1 August 2001, the Court of Appeals denied petitioners appeal and affirmed CSC Resolution Nos. 002651 and 010843. The Court of Appeals declared that there was substantial evidence to support the CSCs finding that respondents resignation was inoperative and inefficacious. The Court of Appeals stated that findings of fact of an administrative agency must be respected, as long as such findings are supported by substantial evidence, even if such evidence might not be overwhelming or preponderant. The Court of Appeals said the fact of

resignation cannot be presumed by the petitioners simple expedient of relying on memoranda or letters merely showing the purported approval of resignation which bore his signature, because to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position.[26]

The Court of Appeals also ruled that respondents alleged act of accepting employment with PRBC did not amount to abandonment of office. The Court of

Appeals held that abandonment is inconsistent with respondents (1) motion for reconsideration of CSC-RO2s Opinion No. LO-000202, (2) appeal questioning CSC-RO2s Decision No. A-000601, and (3) bringing the matter to the National Office of the CSC for resolution.

The Court of Appeals also declared that petitioner was not denied due process because the essence of due process in administrative proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling complained of. In this case, petitioner was able to file a motion for reconsideration and two supplemental motions for reconsideration.

Hence, this petition for review with prayer for a temporary restraining order.

On 8 October 2001, the Court issued a temporary restraining order enjoining the CSC from enforcing the 1 August 2001 Decision of the Court of Appeals and respondent from assuming office at the DTI-RO2, CagayanProvince.[27]

The Issues

Petitioner raises the following issues:

1. Whether respondent validly resigned from DTI-RO2 effective 14 January 2000; and

2. Whether the detail order issued by Undersecretary Ordoez effectively withdrew respondents resignation.

The Courts Ruling

The petition has no merit. The Final Act of a Resignations Acceptance is the Notice of Acceptance

Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority.[28] To constitute a complete and operative resignation from public office, there must be: (a) an intention to

relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority.[29]

Petitioner maintains that respondents resignation was complete because all the elements of a complete and operative resignation were present. On the other hand, respondent claims that his resignation was not complete because there was no valid acceptance of his offer to resign since he was not duly informed of its acceptance.

In our jurisdiction, acceptance is necessary for resignation of a public officer to be operative and effective. Without acceptance, resignation is nothing and the

officer remains in office.[30] Resignation to be effective must be accepted by competent authority, either in terms or by something tantamount to an acceptance, such as the appointment of the successor.[31] A public officer cannot abandon his office before his resignation is accepted, otherwise the officer is subject to the penal provisions of Article 238[32] of the Revised Penal Code.[33] The final or conclusive act of a resignations acceptance is the notice of acceptance.[34] The incumbent official would not be in a position to determine the acceptance of his resignation unless he had been duly notified therefor.[35]

In this case, the Court of Appeals and the CSC declared that there was nothing in the records to show that respondent was duly informed of the acceptance of his resignation. There was no indication that respondent received a copy of his 12 November 1999 application for leave of absence and resignation as accepted by Director Hipolito. Neither was there any indication that respondent received Director Hipolitos 12 November 1999 Memorandum informing him of the acceptance of his resignation. Therefore, we affirm the ruling of the Court of Appeals that respondents resignation was incomplete and inoperative because respondent was not notified of the acceptance of his resignation.

Petitioners contention that respondent knew that his resignation was accepted because respondent had notice that his application for leave of absence was approved does not deserve any merit. As respondent explained, there is a specific form used for an application of leave of absence and the approval of his

application for leave of absence does not necessarily mean the acceptance of his resignation.

On respondents alleged employment with the PRBC, the Court notes that if respondent was employed by PRBC, it was undertaken during his approved leave of absence. It does not have any connection with the acceptance of his resignation. We agree with the findings and conclusions of the Court of Appeals that this does not amount to abandonment. If respondent was indeed employed by PRBC during his approved leave of absence and he violated Civil Service rules, then the proper case should be filed against him. Resignation may be Withdrawn before its Acceptance

Until the resignation is accepted, the tender or offer to resign is revocable.[36] And the resignation is not effective where it was withdrawn before it was accepted.[37]

In this case, since respondents resignation was not finally and conclusively accepted as he was not duly notified of its acceptance, respondent could validly withdraw his resignation. There was no need for Director Hipolito to accept the withdrawal of resignation since there was no valid acceptance of the application of resignation in the first place. Undersecretary Ordoez also validly issued the detail order as respondent had not effectively resigned from DTI-RO2.

WHEREFORE,

we DENY the

petition

and AFFIRM the 1

August

2001 Decision of the Court of Appeals. WeLIFT the temporary restraining order enjoining the Civil Service Commission from enforcing the 1 August 2001Decision of the Court of Appeals and respondent Winston T. Singun from assuming office at the Department of Trade and Industry, Regional Office No. 2, Cagayan Province. FIRST DIVISION PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P. CELESTINO, Petitioners, G. R. No. 138965

Present: PANGANIBAN, CJ, * Chairman, YNARES-SANTIAGO, ** AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ.

- versus -

MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential Commission on Good Government, and RONALDOZAMORA, as Executive Secretary, Respondents.

Promulgated: June 30, 2006

x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for Temporary Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.[1] This action seeks to declare as null and void the concurrent appointments of respondent Magdangal B. Elma as Chairman of the Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) for being contrary to Section 13,[2] Article VII and Section 7, par. 2,[3] Article IX-B of the 1987 Constitution. In addition, the petitioners further seek the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order to enjoin respondent Elma from holding and discharging the duties of both positions and from receiving any salaries, compensation or benefits from such positions during the pendency of this petition.[4] Respondent Ronaldo Zamora was sued in his official capacity as Executive Secretary.

On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of the PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent Elma was appointed CPLC. He took his oath of office as CPLC the following day, but he waived any remuneration that he may receive as CPLC.[5]

Petitioners cited the case of Civil Liberties Union v. Executive Secretary[6] to support their position that respondent Elmas concurrent appointments as PCGG Chairman and CPLC contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that respondent Elma was holding incompatible offices.

Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary, respondents allege that the strict prohibition against holding multiple positions provided under Section 13, Article VII of the 1987 Constitution applies only to heads of executive departments, their undersecretaries and assistant secretaries; it does not cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.

Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be applied in their case. This provision, according to the respondents, would allow a public officer to hold multiple positions if (1) the law allows the concurrent appointment of the said official; and (2) the primary functions of either position allows such concurrent appointment. Respondents also alleged that since there exists a close relation between the two positions and there is no incompatibility between them, the primary functions of either position would allow respondent Elmas concurrent appointments to both positions. Respondents further add that the appointment of the CPLC among incumbent public officials is an accepted practice.

The resolution of this case had already been overtaken by supervening events. In 2001, the appointees of former President Joseph Estrada were replaced by the appointees of the incumbent president, Gloria Macapagal Arroyo. The present PCGG Chairman is Camilo Sabio, while the position vacated by the last CPLC, now Solicitor General AntonioNachura, has not yet been filled. There no longer exists an actual controversy that needs to be resolved. However, this case raises a significant legal question as yet unresolved - whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of this question requires the exercise of the Courts judicial power, more specifically its exclusive and final authority to interpret laws. Moreover, the likelihood that the same substantive issue raised in this case will be raised again compels this Court to resolve it.[8] The rule is that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[9]

Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public.[10]

The merits of this case may now be discussed.

The issue in this case is whether the position of the PCGG Chairman or that of the CPLC falls under the prohibition against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that:
Art. VII . xxxx

Section 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. x x x Art. IX-B. xxxx Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public officeor 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.

To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive Secretary,[11]construed the prohibition against multiple offices contained in Section 7, Article IX-B and Section 13, Article VII in this manner:

[T]hus, 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.

The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if allowed by law or by the primary functions of his position. In the case of Quimson v.Ozaeta,[12] this Court ruled that, [t]here is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green[13] - whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other.
[I]ncompatibilit y between two offices, is an inconsistency in the functions of the two; x x x Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the sa me person, from the contrariet y and antagonism which would result in the attempt b y one person to faithfull y and impartiall y discharge the duties of one, toward the incumbent of the other. x x x The offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. x x x

In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC. In Memorandum Order No. 152, issued on 9 July 2004, the Office of the President, in an effort to promote efficiency and effective coordination, clearly delineated and specified the functions and duties of its senior officers as such:
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the President with legal assistance on matters requiring her action, including matters pertaining to legislation. The CPLC shall have the following duties and functions: a. Exercise administrative supervision over the Office of the CPLC; b. Review and/or draft legal orders referred to her by the President on the following matters that are subject of decisions of the President; 1. Executive Orders, proclamations, administrative orders, memorandum orders, and other legal documents initiated by the President;

2. Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with the rank of Secretary conducted by the Presidential Anti-Graft Commission (PAGC);[14]

As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft Commission, which may involve himself as PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing the prohibition against holding incompatible offices.

Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the concurrent appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they are incompatible offices, this Court will proceed to determine whether such appointments violate the other constitutional provision regarding multiple offices, Section 13, Article VII of the 1987 Constitution.

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries, undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive Secretary,[15] this Court already clarified the scope of the prohibition provided in Section 13, Article VII of the 1987 Constitution. Citing the case of US v. Mouat[16], it specifically identified the persons who are affected by this prohibition as secretaries, undersecretaries and

assistant secretaries; and categorically excluded public officers who merely have the rank of secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by the constitutional prohibition. The persons cited in the constitutional provision are the Members of the Cabinet, their deputies and assistants. These terms must be given their common and general acceptation as referring to the heads of the executive departments, their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby. (Underscoring supplied.)

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter positions.

It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of the 1987 Constitution to respondent Elma, he remains covered by the general prohibition under Section 7, Article IX-B and his appointments must still comply with the standard of compatibility of officers laid down therein; failing which, his appointments are hereby pronounced in violation of the Constitution.

Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to the present case, the defect in respondent Elmas

concurrent appointments to the incompatible offices of the PCGG Chairman and the CPLC would even be magnified when seen through the more stringent requirements imposed by the said constitutional provision. In

the aforecited case Civil Liberties Union v. Executive Secretary,[17] the Court stressed that the language of Section 13, Article VII is a definite and unequivocal negation of the privilege of holding multiple offices or employment. The Court cautiously allowed only two exceptions to the rule against multiple offices: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive officials specified in Section 13, Article VII without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials office. The Court further qualified that additional duties must not only be closely related to, but must be required by the officials primary functions. Moreover, the additional post must be exercised in an ex-officio capacity, which 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.[18] Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity.

With its forgoing qualifications, it is evident that even Section 13, Article VII does not sanction this dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions of the CPLC, and vice

versa. The primary functions of the PCGG Chairman involve the recovery of illgotten wealth accumulated by former President Ferdinand E. Marcos, his family and associates, the investigation of graft and corruption cases assigned to him by the President, and the adoption of measures to prevent the occurrence of corruption.[19] On the other hand, the primary functions of the CPLC encompass a different matter, that is, the review and/or drafting of legal orders referred to him by the President.[20] And while respondent Elma did not receive additional compensation in connection with his position as CPLC, he did not act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment had to be made for respondent Elma to qualify as CPLC negates the premise that he is acting in an ex-officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant secretary. Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent Elma, he still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was occupied by him in an exofficio capacity, and the primary functions of one office do not require an appointment to the other post. Moreover, even if the appointments

in question are not covered by Section 13, Article VII of t he 1987 Constitution, said appointments are still prohibited under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility between the primary functions of the offices of the PCGG Chairman and the CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this petition and declares respondentMagdangal B. Elmas concurrent appointments as PCGG Chairman and CPLC as UNCONSTITUTIONAL. No costs.

G.R. No. 133132. February 15, 2001 ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners, vs. HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U. CRISTOBAL,respondents. RESOLUTION GONZAGA-REYES, J.: Respondents are seeking a reconsideration of the Courts 25 January 2000 decision, wherein we declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally mandated right to security of tenure. As a consequence of our ruling, we held that petitioners removal as Commissioners of the National Police Commission (NAPOLCOM) and the appointment of new

Commissioners in their stead were nullities and ordered the reinstatement of petitioners and the payment of full backwages to be computed from the date they were removed from office. 1 Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the motion for reconsideration have been more than adequately discussed and disposed of by this Court and hence, do not merit further attention. Respondents insist that the Court should take judicial notice of then President Estradas appointment of Alexis C. Canonizado to the position of Inspector General of the Internal Affairs Service (IAS) of the Philippine National Police (PNP) on 30 June 1998, and of Canonizados acceptance and of his having qualified for such position by taking his oath on 2 July 1998 before then Department of Interior and Local Government Undersecretary Ronaldo Puno and again, on 7 July 1998, this time before the President, since these partake of official acts of the Executive Department, which are matters of mandatory judicial notice, pursuant to section 1 of Rule 129 of the Rules of Court. 2 By accepting such position, respondents contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible. Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain that Canonizados initiation and tenacious pursuance of the present case would belie any intention to abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position, annexing to their comment a certification issued by the Finance Service Office of the PNP stating this fact. 3 Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. 4 In order to constitute abandonment of office, it must

be total and under such circumstances as clearly to indicate an absolute relinquishment. 5 There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. 6 Abandonment of duties is a voluntary act; 7 it springs from and is accompanied by deliberation and freedom of choice. 8 There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or external act by which the intention is carried into effect. 9 Generally speaking, a person holding a public office may abandon such office by nonuser or acquiescence. 10Non-user refers to a neglect to use a right or privilege or to exercise an office. 11 However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. 12 Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. 13 Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office. 14 By accepting the position of Inspector General during the pendency of the present case - brought precisely to assail the constitutionality of his removal from the NAPOLCOM - Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of section 8 of RA 8551, which provides Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall constitute a bar to their reappointment or an extension of their terms in the Commission except for current Commissioners who have served less than two (2)

years of their terms of office who may be appointed by the President for a maximum terms of two (2) years. In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect on 6 March 1998, petitioners instituted the current action on 15 April 1998, assailing the constitutionality of certain provisions of said law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment.
1wphi1.nt

The next issue is whether Canonizados appointment to and acceptance of the position of Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. 15 Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. 16 The incompatibility contemplated is not the mere physical impossibility of one persons performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. 17 There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment of any PNP personnel, 18 whereas the NAPOLCOM has the power of control and supervision over the PNP. 19 However, the rule on incompatibility of

duties will not apply to the case at bar because at no point did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first office by the enactment of section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General on 30 June 1998, he had ceased to discharge his official functions as NAPOLCOM Commissioner. As a matter of fact, it was on this same date that Leo S. Magahum and Cleofe M. Factoran were appointed as NAPOLCOM Commissioners by then President Estrada, to join Romeo L. Cairme and Jose Percival L. Adiong - who were earlier appointed and given a term extension, respectively, by then President Ramos - thereby completing the appointments of the four regular members of the NAPOLCOM, pursuant to section 4 20 of the amendatory law. Thus, to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently. At this juncture, two cases should be mentioned for their factual circumstances almost nearly coincide with that of petitioners. The first is Tan v. Gimenez 21 wherein petitioner Francisco Tan, a public school teacher, was required to resign by the Commissioner of Civil Service for gross misconduct. Tan appealed to the Civil Service Board of Appeals, which reversed the decision of the Commissioner and acquitted him of the charge. During the pendency of Tans appeal, he worked as a clerk in the Office of the Provincial Treasurer of Leyte. The Court held that accepting this second position did not constitute abandonment of his former position because [h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the decision of the Commissioner of Civil Service and by virtue thereof was prevented from exercising the functions of his position and receiving the corresponding compensation therefor. While thus deprived of his office and emoluments thereunto appertaining the petitioner had to find means to support himself and his family. The fact that during the time his appeal was pending and was thus deprived of his office and salary, he sought and found employment in another branch of the government does not

constitute abandonment of his former position. To deny him the right to collect his back salaries during such period would be tantamount to punishing him after his exoneration from the charge which caused his dismissal from the service. x x x Very similar to Tan is the case of Gonzales v. Hernandez. 22 In this 1961 case, petitioner Guillermo Gonzales sought reinstatement to his former position as attorney-general of the Investigation and Secret Service Division of the Department of Finance. As in Tan, Gonzales was compelled to resign from office by the Commissioner of Civil Service, who found him guilty of disreputable conduct. During the pendency of his appeal with the Civil Service Board of Appeals, petitioner applied for and accepted employment as an emergency helper in the Government Service Insurance System. The Board of Appeals eventually modified the Commissioners finding by lowering the penalty from removal from office to suspension of two months without pay. In response to the question of whether Gonzales was deemed to have abandoned his position by accepting another position in the GSIS, the Court held that Plaintiffs position in the GSIS was temporary in nature, during the period of an emergency only. He had the right to live during the pendency of his appeal and naturally the right to accept any form of employment. In any case as the court below found, this temporary employment is not incompatible with his old position; he could resign this temporary position any time as soon as his case has been definitely decided in his favor. xxx Although the Court found that the second position accepted by Gonzales was only temporary in nature, the rule on incompatibility of duties makes no such distinction between a permanent or temporary second office. Moreover, the Court still invoked the rationale previously cited in Tan - that petitioners right to live justified his acceptance of other employment during the pendency of his appeal. The Court held that Gonzaless second position was not incompatible with the first since he could resign from the second

position when the case is finally decided in his favor and before he reassumes his previous office. As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent position by a desire to continue serving the country, in whatever capacity. 23 Surely, this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and ones family, either of which are sufficient to justify Canonizados acceptance of the position of Inspector General. A contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP. Respondents also raise some questions regarding the execution of the Courts decision. They cite the fact that because there are three petitioners who were ordered reinstated and four persons currently acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose Percival L. Adiong, 24 Leo S. Magahum and Cleofe M. Factoran, 25 it is unclear who of the current commissioners will be replaced by petitioners. Respondents point out that the execution of the decision becomes particularly complicated when it comes to Adiong, who was a member of the NAPOLCOM under Republic Act No. 6975 (RA 6975), but was removed therefrom and subsequently re-appointed for a two-year term, pursuant to RA 8551. According to respondents, given Adiongs peculiar situation, it is unclear whether the latter should also be entitled to reinstatement as a result of the

assailed decision. 26 Adiong, on his own behalf, filed a Motion for Clarification 27 with this Court contending that, if the Court should uphold the declaration of nullity of section 8 of RA 8551, then he is also entitled to reinstatement to the NAPOLCOM pursuant to his appointment under RA 6975. An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no protection. 28Therefore, the unavoidable consequence of the Courts declaration that section 8 of RA 8551 violates the fundamental law is that all acts done pursuant to such provision shall be null and void, including the removal of petitioners and Adiong from their positions in the NAPOLCOM and the appointment of new commissioners in their stead. When a regular government employee is illegally dismissed, his position does not become vacant and the new appointment made in order to replace him is null and void ab initio. 29 Rudimentary is the precept that there can be no valid appointment to a non-vacant position. 30 Accordingly, Adiongs appointment on 11 March 1998 for a term of two years, pursuant to section 8 of RA 8551, is null and void. However, he should now be permitted to enjoy the remainder of his term under RA 6975. Therefore, based on our foregoing disquisition, there should no longer be any doubt as to the proper execution of our 25 January 2000 decision all the Commissioners appointed under RA 8551 should be removed from office, in order to give way to the reinstatement of petitioners and respondent Adiong. Respondents insist that the present case is similar to a quo warranto proceeding since petitioners prayed for the removal of the incumbent commissioners and for their reinstatement. Therefore, they claim that Magahum and Factoran should have been impleaded as respondents and given the opportunity to defend their positions. 31 We disagree. First and foremost, the petition filed before this Court sought a ruling on the constitutionality of sections 4 and 8 of RA 8551. The inevitable consequence of this Courts declaration that section 8 of said law is unconstitutional is the removal of Adiong, Cairme, Magahum and Factoran from the NAPOLCOM and the reinstatement thereto of petitioners, including Adiong, although under his original appointment

under RA 6975. As discussed earlier, an unconstitutional law is not a law at all; it is in legal contemplation, as inoperative as though it had never been passed. There being no vacancy created in the first place in the office of the NAPOLCOM, the appointments of Magahum, Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities, which cannot be the source of any rights. 32 It is noted that Magahum and Factoran were appointed after more than two months from the time the present petition was filed with the Court, which explains why they were originally not impleaded. Had they been interested in defending the validity of their appointments, Magahum and Factoran could have filed a motion to intervene with this Court. It is highly improbable that they were not aware of the present petition since their colleagues, Cairme and Adiong, were respondents therein. The fact that they did not intervene could only mean that they were willing to be bound by the Courts decision in this case. In addition, it is noted that respondents did not raise this issue when they filed their comment to the petition on 21 September 1998, even though at that time both Magahum and Factoran were already appointed, albeit invalidly, to the NAPOLCOM. Only after the promulgation of our 25 January 2000 decision did respondents belatedly insist that Magahum and Factoran should be made parties to this case. It is not for a party to participate in the proceedings, submit his case for decision and accept the judgment if it is favorable to him but attack it for any reason when it is adverse. 33 In the event that the Court should affirm its decision, respondents pray that the Court apply the ruling in Mayor v. Macaraig 34 which provided that In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M. Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled unconstitutional and void; however, to avoid displacement of any of the incumbent Commissioners now serving, it not appearing that any of them is unfit or has given cause for removal, and conformably to the alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all salaries, benefits and emoluments accruing

to them for the unexpired portions of their six-year terms and allowed to enjoy retirement benefits under applicable laws, pursuant to RA No. 910 and this Courts Resolution in Ortiz v. Commission on Elections, G.R. No. 79857, 161 SCRA 812; xxx We cannot grant respondents prayer for the application of the abovequoted dispositive portion of Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of distinction unlike in Mayor, petitioners herein did not make any alternative prayer for the payment of the salaries, benefits, and emoluments accruing to them for the unexpired portions of their terms in lieu of reinstatement. Contrary to respondents contention, the general prayer of petitioners for such other reliefs just and equitable cannot be deemed as an alternative to their specific prayer for reinstatement. We agree with petitioners view that any remedy necessarily included in this general phrase should be consistent with the specific prayers of petitioners.
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Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates section 16 35 of such law. 36 Once again, respondents did not raise this issue in their comment to the petition, and are therefore estopped from doing so at this late stage. Moreover, the validity of the appointments under RA 6975 was never the issue in this case and accordingly, the Court will not pass upon the same. WHEREFORE, respondents motion for reconsideration is hereby DENIED. However, it is hereby clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival L. Adiong to the NAPOLCOM, together with petitioners herein, pursuant to his appointment under RA 6975. SO ORDERED.