G.R. NO.

L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be briefly
narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February 18,
1983.
1
The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the final
action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administrative
case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect
the approval of the appointment."
2
On March 22, 1984, after protracted hearings the legality of which does not have to be decided here,
the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordingly,
directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of
Felimon Luego whose appointment as Administrative Officer II is hereby revoked."
3
The private respondent was so appointed on June 28,
1984, by the new mayor, Mayor Ronald Duterte.
4
The petitioner, invoking his earlier permanent appointment, is now before us to question
that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another
person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case because his
appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, it is
argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violation
of the Constitution.
5

While the principle is correct, and we have applied it many times,
6
it is not correctly applied in this case. The argument begs the question.
The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing
authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to
reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as
"Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983.
7
What was temporary was the approval of the
appointment, not the appointment it sell And what made the approvaltemporary was the fact that it was made to depend on the condition
specified therein and on the verification of the qualifications of the appointee to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its
authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the
appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with
the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowered to
determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as
in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law,
Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the
nature or kind of the appointment to be extended.
8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position to which
he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service merely as a check to
assure compliance with Civil Service Laws.
9

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights,
the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commission
on Appointments under 1935 Constitution.
10
Appointments made by the President of the Philippines had to be confirmed by that body and
could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then
considered part of the appointing process, which was held complete only after such confirmation.
11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur with it
even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil Service
Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not the
person appointed meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the
Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have inter
alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those presidential
appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those
where the appointees do not possess appropriate eligibility or required qualifications. (emphasis supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to
do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his
appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts
on--or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the
position in controversy.
12
That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except
to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it
believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely
in the city mayor.
In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Ci vil Service
Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are next-in-rank, preference
shall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rule is
inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Service
Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders who
have the appropriate eligibility.
13

There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who each
sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apolitical
organization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This poli tical detachment
will be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked and
changed at will to suit the motivations and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is hereby
declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.
G.R. No. 81467 October 27, 1989
NARCISO Y. SANTIAGO, JR. petitioner,
vs.
CIVIL SERVICE COMMISSION and LEONARDO A. JOSE, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner.
Leonardo A. Jose for himself as private- respondent.

MELENCIO-HERRERA, J.:
Resolution No. 87-554 of the Civil Service Commission, dated 28 December 1987, revoking the promotional appointment of petitioner
Narcisco Y. SANTIAGO, Jr., from Collector of Customs I to Collector of Customs III and directing instead the appointment of private
respondent, Leonardo A. JOSE, to the same position, is sought to be reviewed and reversed herein.
On 18 November 1986, then Customs Commissioner Wigberto E. Taada extended a permanent promotional appointment, as Customs
Collector III, to petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service Commission (CSC), National Capital Region
Office. Prior thereto, SANTIAGO held the position of Customs Collector I.
On 26 November 1986, respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board (the Board, for
short) against SANTIAGO's promotional appointment mainly on the ground that he was next-in-rank to the position of Collector of Customs
III.
Pursuant to Section 19(6) of Presidential Decree No. 807 (the Civil Service Decree), the Board referred the protest to Commissioner Tanada
for appropriate action.
In reply, said official upheld SANTIAGO's promotional appointment on the grounds, among others, that: (1) the next-in-rank rule is no
longer mandatory; (2) the protestee is competent and qualified for the position and such fact was not questioned by the protestant; and (3)
existing law and jurisprudence give wide latitude of discretion to the appointing authority provided there is no clear showing of grave abuse
of discretion or fraud.
On 29 December 1986, respondent JOSE appealed to the Board (MSB Case No. 1410), which, on 17 March 1987, decided to revoke
petitioner SANTIAGO's appointment and directed that respondent JOSE be appointed in his stead.
On 15 July 1987, the Board resolved to deny SANTIAGO's Motion for Reconsideration for lack of merit.
On 28 December 1987, respondent Commission affirmed the Board Resolutions in its own Resolution No. 87-554. The Commission ruled
that although both SANTIAGO and JOSE are qualified for the position of Customs Collector III, respondent JOSE has far better qualifications
in terms of educational attainment, civil service eligibilities, relevant seminars and training courses taken, and holding as he does by
permanent appointment a position which is higher in rank and salary range. It added that the Commission is empowered to administer and
enforce the merit system as mandated by the 1973 and 1987 Constitutions and to approve all appointments, whether original or
promotional, to positions in the civil service, subject to specified exceptions, pursuant to paragraphs (a) and (h), Section 9 of the Civil
Service Law.
Hence, this certiorari Petition filed by SANTIAGO.
On 10 February 1988 the Second Division issued a Temporary Restraining Order enjoining respondents from enforcing CSC Resolution No.
87-554. However, on 24 October 1988, for failure to acquire jurisdiction over the person of respondent JOSE, that Division resolved to
dismiss the Petition and lifted the Temporary Restraining Order. Upon SANTIAGO's Motion for Reconsideration, the same Division allowed
him a period of thirty (30) days within which to locate respondent JOSE'S present address. After having been located and furnished this
Court's previous Resolutions, JOSE manifested his intent to adopt in toto the Comment filed by the Solicitor General for respondent CSC.
On 4 October 1989, pursuant to an adopted policy, the Second Division referred the case to the Courten banc.
We grant reconsideration of our Order of dismissal and reinstate the Petition.
After considering the pleadings filed, the constitutional and statutory provisions invoked, the jurisprudence cited and legal arguments
adduced, we are constrained to reverse.
We need only recall our previous ruling in Taduran vs. Civil Service Commission (L-52051, 31 July 1984, 131 SCRA 66) stating that there is
"no mandatory nor peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointment.
What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by
promotion, the same shall be filled by transfer or other modes of appointment."
One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that
he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing
authority to promote such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83- 343:
Section 4. An employee who holds a next-in- rank position who is deemed the most competent and qualified, possesses
an appropriate civil service eligibility, and meets the other conditions for promotion shall be promoted to the higher
position when it becomes vacant.
However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior
qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for
the position.
The former Customs Commissioner had explained the reasons behind petitioner's appointment in his reply to the Merit Systems Board,
thus:
Suffice it to state that both Jose and the protestee are customs collectors. On 31 January 1984, Jose was assigned to
Panganiban, Camarines Norte, but he never assumed that position. For the past five years, there is no official record of
any activity that recommends him for promotion.
On the other hand, after the February revolution, the Protestee was immediately designated by the undersigned as Chief
of a task force which has been credited with the seizure of millions of pesos worth of smuggled shipments. Each one was
duly recorded, not only in the official files, but also in the media.
For the services, the undersigned saw fit, not only to promote the Protestee but also to designate him as my special
assistant.
It may likewise be mentioned that Protestee has been the recipient of citations awarded by the Customs Commissioner
for the two consecutive years 1984 and 1985, for exemplary performance of official duties, particularly investigation and
prosecution. More specifically, the latest citation commends the Protestee for his pivotal role in the seizure and forfeiture
of an ocean-going vessel upheld by the Supreme Court, which constituted a first in the history of this Bureau.
The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice as to who is best qualified for the
position (Ocampo vs. Subido, L-28344, August 27, 1976, 72 SCRA 443). To apply the next-in-rank rule peremptorily would impose a rigid
formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is
granted discretion and prerogative of choice of the one he deems fit for appointment (Pineda vs. Claudio, L- 29661 May 13, 1969, 28 SCRA
34).
The case of Meram vs. Edralin (L-71228, September 24,1987, 154 SCRA 238) is inapplicable to the factual situation herein. In said case, we
affirmed the appointment of the next- in-rank because the original appointee's appointment was made in consideration of political, ethnic,
religious or blood ties totally against the very purpose behind the establishment of professionalism in the civil service.
True, the Commission is empowered to approve all appointments, whether original or promotional, to positions in the civil service and
disapprove those where the appointees do not possess the appropriate eligibility or required qualification (paragraph (h), Section 9, P.D.
No. 807). However, consistent with our ruling in Luego vs. CSC (L-69137, 5 August 1986,143 SCRA 327), "all the commission is actually
allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required quali fications. If he
does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when
it acts on, or as the decree says, "approves" or "disapproves" an appointment made by the proper authorities. ...To be sure, it has no
authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have
constituted an encroachment on the discretion vested solely (in the appointing authority)."
All told, we fail to see any reason to disturb SANTIAGO's promotional appointment. The minimum qualifications and the standard of merit
and fitness have been adequately satisfied as found by the appointing authority. The latter has not been convincingly shown to have
committed any grave abuse of discretion.
Having arrived at the foregoing conclusion, we find no necessity to delve into the other issues raised.
WHEREFORE, Resolution No. 87-554 of the Civil Service Commission is SET ASIDE and petitioner's promotional appointment as Customs
Collector III is hereby UPHELD. The Temporary Restraining Order heretofore issued, enjoining respondents from enforcing CSC Resolution
No. 87-554, is hereby made permanent.
SO ORDERED.
G.R. No. 88183 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
RAUL MANGLAPUS, THE BOARD OF FOREIGN SERVICE ADMINISTRATION (Manuel T. Yan, Jose D. Ingles,* Rosalinda V. Tirona Ernesto
Garrido, Felipe Mabilangan, Jorge Coquia, Edgardo Kalaw, Federico Macaranas, Purificacion Quisumbing, ** Israel Bocobo, Faustino David,
members), and DONATO FELICIO, respondents.
G.R. No. 88467 October 3, 1990
ALUNAN C. GLANG petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs, respondent.
G.R. No. 88672 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs; Undersecretary of Foreign Affairs and Chairman of the Board of Foreign Service
Administration MANUEL T. YAN; FELIPE MABILANGAN, Coordinator of the BFSA; ROSALINDA V. TIRONA, Director General of the Office of
Personnel Administration; ERNESTO GARRIDO, Director General of Financial Management Services; JORGE COQUIA, Legal Adviser; all
members of BFSA; and CATALINO MACARAIG, JR., Executive Secretary, respondents.
G.R. No. 88781 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
FORTUNATO D. OBLENA, respondent.
G.R. No. 88916 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
JUAN SAEZ, respondent.

NARVASA, J.:
As the caption indicates, this decision deals with five cases. The cases have been consolidated and jointly considered because they all turn
upon a common legal issue, i.e., the validity of the termination, by authority of the President of the Philippines, of the petitioners'
appointments as "political" or "non-career" members of the country's Foreign Service. Stated otherwise, the common issue is whether or
not their service as Philippine diplomats was under the circumstances, at the pleasure of the president, terminable without cause or need
of investigation.
G.R. Nos. 88183 and 88781: Isabelo Astraquillo
Astraquillo was appointed by the President of the Philippines on July 22,1986 as Ambassador Extraordinary and Plenipotentiary and Chief of
Mission (II) to the United Arab Emirates (UAE).
1
After he had occupied the post for two years or so, a confidential memorandum was filed
with the Home Office by Atty. Roy Seneres, the Philippine Labor Attache to the United Arab Emirates, accusing Astraquillo, hi s wife and
cousin-in-law of improper interference with his (Seneres') functions.
2
On instructions of the Board of Foreign Service Administration (BFSA)
the matter was investigated by Ambassador Pacifico Castro from March 28, to 31, 1989.
3
Thereafter, by Memorandum dated April 11,
1989, the Secretary of Foreign Affairs recommended to the President the termination of Astraquillo's services as ambassador. The
recommendation was "APPROVED by authority of the President."
4
Astraquillo was then notified (on April 18, 1989) of the termination of his
services effective immediately,
5
and (on May 8,1989) of the designation of Counsellor Donato Felicio as Charges D'Affaires effective May
17, 1989.
6

Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of his services up to May 31, 1989.
7
But on the same
day that the telex message extending his services was transmitted, May 12, 1989, Astraquillo filed the petition for certiorari at bar,
challenging his removal from his post and the designation of Felicio as Charges D'Affaires. This was docketed as G.R. No. 88183. After
Ambassador Fortunato D. Oblena was appointed to replace him as the country's Ambassador Extraordinary and Plenipotentiary to the UAE,
Astraquillo filed with this Court a petition for quo warrantocontesting the appointment. This second case was docketed as G.R. No. 88781.
His basic thesis is that the Foreign Affairs Secretary had no power qua department head, and without prior authorization of the President,
to terminate his services, he being a presidential appointee; and under the Foreign Service Code of 1983, his removal could be predicated
only upon good cause duly established at a hearing of which he was entitled to notice and an opportunity to defend. Corollari ly, designation
of a replacement for him, either in a temporary or permanent capacity, was also nun and void.
G.R. No. 88467: Alunan C. Glang
Alunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador Extraordinary and Plenipotentiary and Chief of
Mission (Class I) to Kuwait,
8
and assumed his post on January 11, 1987.
9

Two years afterwards, or on May 27, 1989, he received a telex message from the Secretary of Foreign Affairs informing him that his services
as ambassador and chief of mission to Kuwait had been terminated and directing him to vacate his post "on or before June 30, 1989."
10
The
message further advised that the termination of his services was "explicit in a Memorandum dated 18 May 1989" a copy of which would be
furnished him by telefax. The memorandum referred to was one signed by Secretary Raul Manglapus recommending the "recall and
subsequent termination of the services of Ambassador Alunan C. Glang as Ambassador to the State of Kuwait . . . which was approved by
Executive Secretary Catalino Macaraig, Jr. "BY AUTHORITY OF THE PRESIDENT."
11

On May 30, 1989 Glang sent communications separately addressed to the Office of the President and the Secretary of Foreign Affairs
stating that he considered his separation from the service as "illegal and violative of RA No. 704, known as the Foreign Service Act of 1952,"
as amended, he being entitled to security of tenure and removable only for cause and not at the pleasure of the President.
12
The Foreign
Secretary's reply (sent by telex on June 2, 1989) was prompt and simple: the notice of termination of Glang's services "dated 26 May 1989,
stands;" he should "accept the President's decision" and seek redress "only through the proper courts of law" if he felt he had been
"unlawfully treated."
13

Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies upon substantially the same arguments as those
advanced by Astraquillo, supra.
14

G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr.
Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary and Plenipotentiary on June 27, 1986.
15
On July
3, 1986, Vice-President Salvador H. Laurel, then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R.
16
This post Melchor assumed on
September 4, 1986,
17
after which he received another appointment from the President on October 15, 1986 as Chief of Mission, Class, 1.
18

On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow
19
filed a complaint with the Department of Foreign
Affairs against Melchor and two others
20
for "acts inimical to the Foreign Service, in violation of the Foreign Service Code (and) blatant
disregard of COA rules and regulations and the Civil Service Code."
21
The complaint was investigated by Ambassador Ernesto Garrido,
Director General for Financial Management Services of the Foreign Affairs Department, by direction of the Secretary.
22
Garrido's report to
the Board of Foreign Service Administration (BSFA) of the Foreign Affairs Department dealt with ten of the fourteen (14) charges but failed
to resolve four (4) others.
23
Said Board, after deliberating on the report, directed the filing of a charge sheet against Melchor relative to the
four (4) unresolved accusations as to which the latter had filed no written answer;
24
and accordingly, the Director General for Personnel
and Administrative Services formally charged Melchor, under date of January 2,1989, with the following offenses, to wit:
25

1) establishment of a private restaurant on the third floor of the Philippine Embassy Building without prior notice and
approval of the Home Office;
2) issuance of visas to persons not qualified to travel to the Philippines;
3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors contrary to existing laws; and
4) leaving his post without permission from the Home Office from October to December 1987 and January 22-26, 1988.
By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was "no basis for me to reply under oath" (to the charges
as required) as "said complaint has not been subscribed and sworn to according to the provisions of P.D. 807," drawing attention, however,
to his reply "to the complaint on 22 September 1988 Dispatch No. AM-193-88, Subject: Comments to complaint."
26
He also wrote to
President Aquino on the same date regarding the "unfounded charges" against him and requesting that the matter be resolved before his
return to his post.
27
He wrote another letter to President Aquino, dated January 19, 1989, this time under oath, inter alia submitting his
answers to the four unresolved charges against him since, according to him, "it is only the President that can decide my case."
28
Melchor's
letter was referred to the Secretary
29
who, acting thereon, issued Memorandum No. 4230 declaring his approval of the BFSA
recommendation that Melchor: (a) be allowed to forthwith return to his Moscow post to prepare for the President's state visit, (b) be
thereafter transferred to another post, and (c) be reprimanded on account of the four charges against him.
30

The affair was, however, far from ended. On February 10, 1989, Melchor advised the Secretary in writing that he would indeed return to
Moscow but protested the reprimand administered to him and his announced transfer to another post after the state visit, clai ming that as
a "presidential appointee," he was beyond the disciplinary authority of the BFSA and that, furthermore, he had been denied due
process.
31
On the same day he directed an "APPEAL" to the President praying that she "nullify, after review by an impartial body . . . the
illegal action of Sec. Manglapus and the Board and return . . . (him to his) post in Moscow without the stigma of a reprimand . . . ."
32

It appears that the BFSA re-examined the evidence against Melchor and came to the conclusion that all charges against him should be
dropped as there was "no basis" therefor and consequently, his appeal had been rendered moot and academic.
33
This was communicated
to the Foreign Affairs Secretary on June 9, 1989 and thence to the Office of the President, with the observation that Melchor's appeal had
indeed become moot and academic. On the basis thereof, Executive Secretary Macaraig "terminated" the administrative case against
Melchor, by Order dated June 9, 1989.
34

It appears, however, that about a week earlier, or on May 29, 1989, the Secretary of Foreign Affairs had submitted a Memorandum to the
President recommending the termination of the services of Melchor described as "a political (non-career) Ambassador" as Chief of
Mission and as Ambassador" to the U.S.S.R, and that he "should vacate his post by 30 June 1989."
35
This was "APPROVED by authority of
the President" on June 13, 1989 by Executive Secretary Macaraig.
36

On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the proposition that the termination of his services by Foreign
Affairs Secretary Manglapus after he had been absolved of the charges against him, was unwarranted and illegal, and that the authority to
so terminate his services was "vested exclusively on the President herself . . . ."
Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking invalidation of the re-assignment or transfer of
Ambassador Juan V. Saez from Amman, Jordan to the Philippine Embassy at Moscow.
37

Against this factual background, the petitioners submit the following common contentions:
38

1) that the removals from the service were not made by the President personally and directly;
2) that the removals did not state a cause explicitly prescribed by the Foreign Service Act or the Civil Service Law;
3) that the removals were affected without due process;
4) the petitioners were appointed right after the so-called "EDSA Revolution," and when Vice-President Laurel was
Minister of Foreign Affairs; and
5) all were appointed Chief of Mission Class I (except Astraquillo, who was named Class II Chief) and came into Foreign
Service "through lateral entry."
The Civil Service Law, Presidential Decree No. 807, classifies employment in Government into "career" and "non-career service." It identifies
the peculiar characteristics of each category, and enumerates the positions falling under each class.
Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by:
(1) entrance based on merit and fitness, to be determined as far as practicable by competitive examinations, or based on
highly technical qualifications;
(2) opportunity for advancement to higher career positions; and
(3) security of tenure.
Section 5 then enumerates the particular positions falling under the Career Service, including, as will be noted, those in the Foreign Service.
They are the following:
39

(1) Open Career positions for appointment to which prior qualifications in an appropriate examination is required;
(2) Closed Career positions which are scientific or highly technical in nature; these includes the faculty and academic staff
of state colleges and universities and scientific and technical positions in scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service, namely: Undersecretary, Assistant Secretary, Bureau Director, Assistant
Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as
the Foreign Service Officers in the Ministry of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary
functions, who do not fall under the non-career service; and
(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled.
(8) The "Non-Career Service," on the other hand, according to Section 6 of the same PD 807, shall be characterized by:
40

(1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority
or subject to his pleasures, or which is limited to the duration of a particular project for which purposes employment was
made.
And the officials and employees listed under the Non-Career Service include:
(1) Elective officials and their personal or confidential staff;
(2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their
personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to
undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific
work or job, under his own responsibility with a minimum of directions and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.
By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J. Astraquillo, Alunan C. Glang, and Alejandro Melchor, Jr.,
pertained to the Non-Career Service. Their appointments to the Foreign Service were made on "bases other than those of the usual test of
merit and fitness utilized for the career service;" their entrance was not 'based on merit and fitness . . . determined . . . by competitive
examinations, or based on highly technical qualifications." This being so, their "tenure . . . (was) coterminous with that of the appointing
authority or subject to his pleasures, . . . ."
It is worthy of note that among the officers categorized in the Career Service by the Civil Service Law, PD No. 807, are "Career officers, other
than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Ministry of
Foreign Affairs." Implicit in this reference to "career officers" in the Ministry (now Department) of Foreign Affairs is the acknowledgement
of non-career officers in that ministry (department).
The same distinction between career and non-career officers may be derived by implication from the provisions of the Foreign Service Act
of 1952, R.A. No. 708, as amended.
Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . . composed of Foreign Service Officers appointed by the
President upon the recommendation of the Secretary," and declares that "(n)o person shall be eligible for appointment (in such corps)
unless he has passed such competitive examinations as the Board of Foreign Service examination may prescribe to determine his fitness
and aptitude for the work of the service and has demonstrated his loyalty to the Government of the Republic of the Philippines and his
attachment to the principles of the Constitution."
41
Those who thus qualify are "certified by the Secretary of Foreign Affairs as eligible for
appointment as Foreign Service Officer(s)," and it is exclusively from these officers so certified that the President "shall appoint Foreign
Service Officers . . . ."
42

Now, there are those, like the petitioners, who are appointed to the Foreign Service, without having qualified in the manner just indicated
and consequently without having been certified by the Foreign Affairs Secretary as eligible for appointment as Foreign Service Officers.
43
In
view of the provisions of law just cited, they certainly do not and cannot be deemed embraced in the Career Service Corps. They can only
be regarded then as "non-career officers" or "political appointees" who, as already pointed out, have a "tenure . . . coterminous with that of
the appointing authority or subject to his pleasures, . . . ."
Melchor discusses at length what he feels to be the distinction between an ambassador and a chief of mission, and argues that whatever
might be said about his serving at the pleasure of the President as ambassador, his appointment as chief of mission had undoubtedly given
him security of tenure as regards this latter position. He opines that the term, "chief of mission," has two meanings in the Foreign Service
Act.
He states that Section 3(i), Title I of the Act defines the term as "a principal officer appointed by the President of the Philippines, with the
consent of the Commission on Appointments, to be in charge of the embassy and legation and other diplomatic mission of the Philippines
or any other person assigned under the terms of this act to be minister resident, charge d'affaires, commissioner or diplomatic agent."
44
On
the other hand, he says that in other parts of the law ("Title II, Part B, Section I, Part C, Section 1 , and Title I, Part B, Section 1") "the use of
the term Chief of Mission is in a different context for it refers to the rank and class of the Foreign Service Officer in the enumeration of
categories of officers and employees of the foreign service as well as the salary scale.
45

The discussion fails to demonstrate that, with regard to the petitioners, a chief of mission is indeed significantly different from an
ambassador. Petitioners Astraquillo, Glang and Melchor were appointed as ambassadors, respectively, in the United Arab Emirates (UAE),
Kuwait, and Moscow. Their appointments as chief of missions in their respective posts simply meant that, as ambassadors extraordinary
and plenipotentiary they were being placed in charge of the embassy or legation therein. Indeed, it seems evident that even without being
named chief of mission, the fact that they were the highest ranking official in their respective embassies would operate to place them in
charge thereof as a matter of course.
Obviously, however, this aspect of their appointments has no effect on the essential character of their positions as pertaini ng to the non-
career service. Consequently the termination of their connection with the Foreign Service was not dependent on proof of some legally
recognized cause therefor, after due notice and hearing as in the case of career officers and employees but lay entirely within the will
of the President, in the exercise of her discretion, and her determination of the wisdom, necessity or convenience of such a step in the
national interest, actually a political decision. In making this determination, the President may take account of the recommendation of the
Secretary of Foreign Affairs who, as the President's alter ego, heads and controls the Department of Foreign Affairs and supervises and
directs all officials and employees assigned abroad.
46

The petitioners' other argument that their separation from the service is illegal because not effected by the President of the Philippines
who alone has the power to do so, is specious. The fact is that it was in truth the President who ordered their removal. The record shows
that the President approved the recommendation of the Secretary of Foreign Affairs for the termination of their services. This is shown by
the pertinent documents in which the Executive Secretary officially certified that the recommendation for their separation from the service
had been "APPROVED by Authority of the President."
Finally, since none of the petitioners has shown any right to be returned to the office from which they had been separated by authority of
the President, none of them is entitled to the writ of quo warranto to oust the officials who have since replaced them in their respective
posts.
WHEREFORE, the petitions in the cases embraced in this opinion, i.e., G.R. Nos. 88183, 88781, 88467, 88672, 888916, are all DENIED, with
costs against petitioners.
Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.
Fernan, C.J. and Paras, J., is on leave.

G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN
ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.

CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees
Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the
Social Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary
injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the
entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with
the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that
the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of
preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners
herein) be ordered to pay damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the
provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night
differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and
permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and
payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and
allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary
injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject
matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp.
209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an
injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration
of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with
preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court,
through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but
during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners
moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R.
No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this
Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of
Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another
strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain
the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined
and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the
restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National
Labor Relations Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil servi ce laws and
rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has
jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since
the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court,
which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the
Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as
follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the
strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with
law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and employees, including those in the publ ic sector, to strike. But
the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after
defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to
government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people,
including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall
not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to
organize, it is silent as to whether such recognition also includes the right to strike.
Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the
proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government
employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the
right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to
government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-
President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-
organization of government employees, it does not mean that because they have the right to organize, they also have the
right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right
to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or
societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit
the strikes coming from employees exercising government functions, that could be done because the moment that is
prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875.
In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but
they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that
because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that
subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem.
We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen
if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a
matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry
with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned
strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted
with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. The terms and conditions of employment in the Government,
including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this
Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and
conditions of employment. Such employees may belong to any labor organization which does not impose the obligation
to strike or to join in strike:Provided, however, That this section shall apply only to employees employed in governmental
functions and not those employed in proprietary functions of the Government including but not limited to governmental
corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations
established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for
purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and
conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be
governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not
government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally
silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O.
No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided
that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any
legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil
Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by
government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes,
demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public
service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of
Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular
No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original
charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government
employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No.
1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the
Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124
SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with
regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government,
including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act,
R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of
government employment are fixed by law, government workers cannot use the same weapons employed by workers in the
private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that
industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees
rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare
legislation, the terms and conditions of employment in the unionized private sector are settled through the process of
collective bargaining. In government employment, however, it is the legislature and, where properly given delegated
power, the administrative heads of government which fix the terms and conditions of employment. And this is effected
through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p.
13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional
Convention, and quoted with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar
character of the public service, it must necessarily regard the right to strike given to unions in private industry as not
applying to public employees and civil service employees. It has been stated that the Government, in contrast to the
private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests
as are present in private labor relations could not exist in the relations between government and those whom they
employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA
172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same
philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among
those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be
the subject of negotiations between duly recognized employees' organizations and appropriate government authorities.
The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of
complaints, grievances and cases involving government employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the
[Public Sector Labor- Management] Council for appropriate action.
Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms
and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the
improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector
Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other
temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided
under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization,
which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political
subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and
employees therein shall not strike for the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain
it.
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the
Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides
that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art.
276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes
involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended,
from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the
Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its
jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts
of law for the issuance of a writ of injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a
writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the
same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the
Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners
allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of
preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the
SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled
that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the
administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order
of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue
an injunction, but to cause the execution of the aforesaid order, if it has already become final.
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the
decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary
and Mandatory Injunction" dated December 13,1988 is DENIED.
SO ORDERED.
G.R. No. 92403 April 22, 1992
VICTOR A. AQUINO, petitioner,
vs.
CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents.

MEDIALDEA, J.:
This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the respondent Civil
Service Commission, namely: (1) Resolution No. 88-820 dated November 7, 1988 reversing the decision of the Merit Systems Protection
Board dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture and Sports dated May 4, 1987 upholding
the appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of San Pablo City; and (2) Resolution No. 90-224 dated
February 27, 1990 denying the motion for reconsideration with prayer for issuance of temporary restraining order for lack of merit.
The antecedent facts are as follows:
Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated on July 20, 1984
as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. Magturo (Annex "H", petition, p. 55, Rollo) in
view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.
Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner was designated as Property Inspector and In-
Charge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo).
Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of San Pablo City, Milagros Tagle, issued a
promotional appointment to private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division of San Pablo City. She
assumed and performed the duties and functions of the position and received the compensation and benefits therefor.
At the time of her appointment, private respondent was then holding the position of Clerk II, Division of City Schools of San Pablo City. From
August 25, 1976 to September 1983, she was designated as Assistant to the Supply Officer (DECS decision, p. 31, Rollo). The Civil Service
Regional Office IV approved her appointment as permanent "provided that there is no pending administrative case against the appointee,
no pending protest against the appointment, nor any decision by competent authority that will adversely affect the approval of (the)
appointment" (Annex "A", Comment of CSC, p 164, Rollo).
One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS Secretary questioning the qualification and
competence of private respondent for the position of Supply Officer I.
In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the protest of petitioner and revoked the appointment of
private respondent as Supply Officer I thus:
From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la Paz, apparently the former
has a decided advantage over the latter in terms of education, experience and training. Further examination of the
comparative statement shows that Mrs. de la Paz has had no relevant in-service training course attended and completed.
Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for appointment as Supply Officer I.
xxx xxx xxx
Based on all the foregoing and as records further show that Mr. Aquino is competent and qualified to hold the subject
position and possesses the eligibility requirement, this Office finds the instant protest meritorious and hereby rules and so
rules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose appointment thereto is deemed
revoked. (p. Annex "C", pp. 30-31, Rollo)
Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by Secretary
Quisumbing in a Resolution dated August 11, 1967.
On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was issued a permanent appointment dated August
11, 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987. On the date of effectivity of his
appointment, petitioner assumed the duties and functions of the position. The said appointment was approved by the Civil Service Regional
Office IV on October 27, 1987.
For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with motion to maintainstatus quo to the Merit
Systems Protection Board (MSPB) which, on February 5, 1988, rendered a decision upholding the appointment of Aquino as Supply Officer I
(Annex "D", petition pp. 33-35, Rollo).
From the decision of the MSPB, private respondent appealed to public respondent Civil Service Commission (CSC).
In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal of private respondent meritorious, thus
revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I, DECS, Division
of San Pablo City under her previously approved appointment (Annex "B", petition, pp. 26-29, Rollo).
From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. Finding no merit
to the motion for reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-224 dated February 27, 1990 denying
said motion (Annex "A", petition, pp. 21- 24, Rollo).
Hence, this petition seeking the reversal of public respondent Commission's action on petitioner's appointment.
Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments were raised
by petitioner which could be simplified into whether or not public respondent Civil Service Commission committed grave abuse of
discretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the DECS Division of San Pablo City as it found
private respondent Leonarda de la Paz better qualified.
In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the ruling of this Court in the case of Santiago v. Civil
Service Commission, G.R. No. 81467, October 27, 1989, 178 SCRA 733 and Galura v.Civil Service Commission, G.R. 85812, June 1, 1989 (En
Banc resolution) that the Civil Service Commission has no authority to revoke an appointment on the ground that another person is more
qualified for a particular position for that would have constituted an encroachment on the discretion vested solely in the appointing
authority. The Civil Service Commission cannot exceed its power by substituting its will for that of the appointing authority.
In support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion given to the appointing authority in the
selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as rationale for
the rule laid down in Luego v. Civil Service Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, Central Bank v. CSC, G.R. No. 80455-
56, April 10, 1989, 171 SCRA 744, Patagoc v. CSC, G.R. No. 90229, May 14, 1990, 185 SCRA 411, that public respondent CSC, not being the
"appointing power" in contemplation of law, has no authority to revoke an appointment on the ground that another person is more
qualified for a particular position and that the Commission has no authority to direct the appointment of a substitute of its choice.
We have consistently applied the above doctrine in many cases with similar factual circumstances, but we see no compelling reason to
apply the same in the instant case. In the cases cited above, We ruled that the Civil Service Commission has no authority to revoke an
appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an
encroachment on the discretion solely vested on the appointing authority. The situation is different as in the instant case, where the Civil
Service Commission revokedthe appointment of the successful protestant, petitioner herein, principally because the right to security of
tenure of the prior appointee, private respondent herein, to the contested position had already attached (see CSC decision, pp. 28-
29, Rollo). It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored the
appointment of private respondent who was first appointed to the contested position.
The records show that private respondent was issued a permanent appointment on September 19, 1986 as Supply Officer I in the DECS
Division of San Pablo City effective September 30, 1986. On the basis of the of said appointment which was approved by the Civil Service
Regional Office No. IV, private respondent assumed and performed the duties and functions of the position as Supply Officer I and received
the compensation and benefits of the said position in accordance with the mandate of Section 9 par.(h) of the Civil Service Law (P.D. 807, as
amended). In consonance with the doctrine laid down in Villanueva v. Balallo, G.R. No. L-17745, October 31, 1963, 9 SCRA 407, that an
appointment is complete when the last act required of the appointing power has been performed, but later qualified in Favis v. Rupisan,
G.R. No. L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a department or office making the appointment and the
Commissioner of Civil Service acting together, though not concurrently, but consecutively, are necessary to make an appointment
complete, the permanent appointment extended to private respondent, under the circumstances of the case, is deemed complete. As such,
she is entitled to the protection of the law against unjust removal.
The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner merely
supports the validity of the restoration of private respondent to her previously approved appointment considering that she meets the
prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service eligibility, to wit:
EDUCATION: Bachelor's degree with training in Supply Management
EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service (Professional)
It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a
completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by
the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with
previous notice and hearing (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127.
There is also authority for the rule that when the appointing power has once acted and the appointee has acceptedthe office and done
what is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed only in the regular way
(Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch (U.S.) 137). The appointing power can
not effect his removal indirectly by rescinding or revoking his appointment after it is complete.
There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and the
appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority on the
ground merely that the protestant is more qualified than the first appointee, subject however to the condition that the first appointee
should possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 par. (3)
of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising its discretionary
power of appointment.
While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made, the protest must be
"for cause" or predicated on those grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807), namely: (1) that the
appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of appointment by transfer, reinstatement, or by
original appointment, that the protestant is not satisfied with the written special reason or reasons given by the appointing authority.
We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v. Mallare, G.R. No. L-
3881, August 31, 1950, 87 Phil. 289, as follows: "It means for reasons which the law and sound public policy recognized as sufficient warrant
for removal, that is legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is
implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the
cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly
affecting the rights and interests of the public."
The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education, experience and
training does not fall within the meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the 1987 Constitution which
would warrant the revocation, if not removal, of the appointment of private respondent. Neither does it fall under the grounds of appeal
contemplated under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the protest of petitioner did not adversely affect the
approval of the appointment of private respondent.
Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary Quisumbing, still
the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the decision on the protest in
violation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant (petitioner) if the protest case is not
yet finally resolved, since there is no vacancy in the position pending resolution of the protest case. There can be no appoi ntment to a non-
vacant position. The incumbent must first be legally removed or his appointment validly terminated (Costin v. Quimbo, G.R. No. L-32271,
January 27, 1983, 120 SCRA 159). An appointment to an office which is not vacant is null and void ab initio (Morata v. Court of Appeals, G.R.
No. L-18975, May 25, 1964, 11 SCRA 42).
CSC Resolution No. 83-343 provides, thus:
An appointment though contested shall take effect immediately upon issuance if the appointee assumes the duties of the
position and (the) appointee is entitled to receive the salary attached to the position. Likewise such appointment shall
become ineffective in case the protest is finally resolved in favor of the protestant, in which case the protestee shall be
reverted to his former position. (p. 223,Rollo)
Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May 4, 1987 and
the motion for reconsideration filed by private respondent was denied on August 11, 1987. The appointment issued to petitioner as Supply
Officer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity of his appointment) as reported
by the Schools Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all indications, the appointment of petitioner dated August
11, 1987 was issued with undue haste before the finality of the denial of the motion for reconsideration.
While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and appointment of
qualified persons to vacant positions in the civil service, we cannot, however, give a stamp of approval to such a procedural irregularity in
extending appointments, as in the instant case, to the prejudice of the right to security of tenure of the incumbent to the position.
ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the respondent Civil
Service Commission are hereby AFFIRMED. The Secretary of the Department of Education, Culture and Sports is hereby directed to restore
private respondent Leonarda de la Paz to her previously approved appointment as Supply Officer I, DECS, Division of San Pablo City.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.
Bellosillo, J., took no part

G.R. No. 100947 May 31, 1993
PNOC ENERGY DEVELOPMENT CORPORATION and MARCELINO TONGCO, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and MANUEL S. PINEDA, respondents.
Alikpala, Gomez & Associates Law Office for petitioners.
Filomeno A. Zieta for private respondent.

NARVASA, C.J.:
The applicability to private respondent Manuel S. Pineda of Section 66 of the Election Code is what is chiefly involved in the case at bar. Said
section reads as follows:
Sec. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.
Manuel S. Pineda was employed with the Philippine National Oil Co.-Energy Development Corp. (PNOC-EDC), as subsidiary of the Philippine
National Oil Co., from September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment was terminated. The
events leading to his dismissal from his job are not disputed.
In November, 1987, while holding the position of Geothermal Construction Secretary, Engineering and Construction Department, at
Tongonan Geothermal Project, Ormoc City, Pineda decided to run for councilor of the Municipality of Kananga, Leyte, in the local elections
scheduled in January, 1988, and filed the corresponding certificate of candidacy for the position. Objection to Pineda's being a candidate
while retaining his job in the PNOC-EDC was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The mayor
communicated with the PNOC-EDC thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal Project to express the view
that Pineda could not actively participate in politics unless he officially resigned from PNOC-EDC.
1
Nothing seems to have resulted from this
protest.
The local elections in Leyte, scheduled for January, 1988, were reset to and held on February 1, 1988. Pineda was among the official
candidates voted for, and eventually proclaimed elected to, the office of councilor. Some vacillation appears to have been evinced by
Pineda at about this time. On February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to withdraw from the political
contest on account of what he considered to be election irregularities;
2
and on March 19, 1988, he wrote to the Secretary of Justice seeking
legal opinion on the question, among others, of whether or not he was "considered automatically resigned upon . . . filing of . . . (his)
certificate of candidacy," and whether or not, in case he was elected, he could "remain appointed to any corporate offspring of a
government-owned or controlled corporation."
3
Nevertheless, Pineda took his oath of office in June, 1988 as councilor-elect of the
Municipality of Kananga, Leyte.
4
And despite so qualifying as councilor, and assuming his duties as such, he continued working for PNOC-
EDC as the latter's Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc
City.
On June 7, 1988, Marcelino M. Tongco, Department Manager of the Engineering and Construction Department, PNOC-EDC, addressed an
inquiry to the latter's Legal Department regarding the status of Manuel S. Pineda as employee in view of his candidacy for the office of
municipal councilor.
5
In response, the Legal Department rendered an opinion to the effect that Manuel S. Pineda should be considered ipso
facto resigned upon the filing of his Certificate of Candidacy in November, 1987, in accordance with Section 66 of the Omnibus Election
Code.
6

Pineda appealed the PNOC-EDC Legal Department's ruling to N.C. Vasquez, the Vice-President of PNOC-EDC, on July 14, 1988. In his letter of
appeal,
7
he invoked a "court ruling in the case of Caagusan and Donato vs. PNOC-Exploration Corp. . . . (to the effect that) while the
government-owned or controlled corporations are covered by the Civil Service Law (as is taken to mean in Sec. 66 of the Omnibus Election
Code of 1985) (sic), the subsidiaries or corporate offsprings are not." In the same letter he declared his wish to continue resign from his
position as councilor/member of the Sangguniang Bayan.
He also wrote a letter dated October 1, 1988 to the Department of Local Government inquiring about the status of his employment with
PNOC-EDC in relation to his election as member of the Sangguniang Bayan. He was advised by DLG Undersecretary Jacinto T. Rubillo, Jr., by
letter dated March 31, 1989, that there was no legal impediment to his continuing in his employment with PNOC-EDC while holding at the
same time the elective position of municipal councilor. Cited as basis by Undersecretary Rubillo was Section 2(1) Article IX-B of the 1987
Constitution and this Court's ruling in NASECO vs. NLRC, 168 SCRA 122. Undersecretary Rubillo went on to say that Pineda could receive
his per diems as municipal councilor as well as the corresponding representation and transportation allowance [RATA] "provided the PNOC-
EDC charter does not provide otherwise and public shall not be prejudiced."
8

The PNOC-EDC did not, however, share the Undersecretary's views. On January 26, 1989, the PNOC-EDC, through Marcelino Tongco
(Manager, Engineering and Construction Department), notified Manuel S. Pineda in writing (1) that after having given him "ample time" to
make some major adjustments before . . . separation from the company," his employment was being terminated pursuant to Section 66 of
the Omnibus Election Code, effective upon receipt of notice, and (2) that he was entitled to "proper compensation" for the services
rendered by him from the time he filed his certificate of candidacy until his actual separation from the service.
9

On October 16, 1989, Pineda lodged a complaint for illegal dismissal in the Regional Arbitration Branch No. VIII, NLRC, Tacloban City.
Impleaded as respondents were the PNOC-EDC and the Manager of its Engineering and Construction Department, Marcelino M. Tongco.
10

After due proceedings, Labor Arbiter Araceli H. Maraya, to whom the case was assigned, rendered a decision on December 28,
1990,
11
declaring Manuel S. Pineda's dismissal from the service illegal, and ordering his reinstatement to his former position without loss of
seniority rights and payment of full back wages corresponding to the period from his illegal dismissal up to the time of actual
reinstatement. The Arbiter pointed out that the ruling relied upon by PNOC-EDC to justify Pineda's dismissal from the service, i.e., NHA
v. Juco,
12
had already been abandoned; and that "as early as November 29, 1988," the governing principle laid down by case law in light
of Section 2 (1), Article IX-B of the 1987 Constitution
13
has been that government-owned or controlled corporations incorporated under
the Corporation Code, the general law as distinguished from those created by special charter are not deemed to be within the
coverage of the Civil Service Law, and consequently their employees, like those of the PNOC-EDC, are subject to the provisions of the Labor
Code rather than the Civil Service Law.
14

The PNOC-EDC filed an appeal with the National Labor Relations Commission. The latter dismissed the appeal for lack of merit in a decision
dated April 24, 1991.
15
PNOC-EDC sought reconsideration;
16
its motion was denied by the Commission in a Resolution dated June 21,
1991.
17

It is this decision of April 24, 1991 and the Resolution of June 21, 1991 that the PNOC-EDC seeks to be annulled and set aside in the special
civil action for certiorari at bar. It contends that the respondent Commission gravely abused its discretion:
1) when it ruled that Manuel S. Pineda was not covered by the Civil Service Rules when he filed his candidacy for the 1988
local government elections in November 1987;
2) when it ruled that Pineda was not covered by the Omnibus Election Code at the time he filed his certificate of
candidacy for the 1988 local elections;
3) when it ruled that Pineda was illegally dismissed despite the fact that he was considered automatically resigned
pursuant to Section 66 of the Omnibus Election Code; and
4) when it ruled that Pineda could occupy a local government position and be simultaneously employed in a government-
owned or controlled corporation, a situation patently violative of the constitutional prohibition on additional
compensation.
Acting on the petition, this Court issued a temporary restraining order enjoining the respondent NLRC from implementing or enforcing its
decision and resolution dated April 24, 1991 and June 21, 1991, respectively.
In the comment required of him by the Court, the Solicitor General expressed agreement with the respondent Commission's holdi ng that
Manuel Pineda had indeed been illegally separated from his employment in the PNOC-EDC; in other words, that his running for public office
and his election thereto had no effect on his employment with the PNOC-EDC, a corporation not embraced within the Civil Service.
Petitioner PNOC-EDC argues that at the time that Pineda filed his certificate of candidacy for municipal councilor in November, 1987, the
case law "applicable as far as coverage of government-owned or controlled corporations are concerned . . . ( was to the following effect):
18

As correctly pointed out by the Solicitor General, the issue of jurisdiction had been resolved in a string of cases starting
with the National Housing Authority vs. Juco (134 SCRA 172) followed byMetropolitan Waterworks and Sewerage System
vs. Hernandez (143 SCRA 602) and the comparatively recent case of Quimpo vs. Sandiganbayan (G.R. No. 72553, Dec. 2,
1986) in which this Court squarely ruled that PNOC subsidiaries, whether or not originally created as government-owned
or controlled corporations are governed by the Civil Service Law.
This doctrine, petitioner further argues, was not "automatically reversed" by the 1987 Constitution because not "amended or repealed by
the Supreme Court or the Congress;"
19
and this Court's decision in November, 1988, inNational Service Corporation vs. NLRC, supra
20

abandoning the Juco ruling "cannot be given retroactive effect . . . (in view of ) the time-honored principle . . . that laws (judicial decisions
included) shall have no retroactive effect, unless the contrary is provided (Articles 4 and 8 of the New Civil Code of the Philippines)."
Section 2 (1), Article IX of the 1987 Constitution provides as follows:
The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.
Implicit in the provision is that government-owned or controlled corporations without original charters i.e., organized under the general
law, the Corporation Code are not comprehended within the Civil Service Law. So has this Court construed the provision.
21

In National Service Corporation (NASECO), et al. v. NLRC, et al., etc.,
22
decided on November 29, 1988, it was ruled that the 1987
Constitution "starkly varies" from the 1973 charter upon which the Juco doctrine rested in that unlike the latter, the present
constitution qualifies the term, "government-owned or controlled corporations," by the phrase, "with original charter;" hence, the clear
implication is that the Civil Service no longer includes government-owned or controlled corporations without original charters, i.e., those
organized under the general corporation law.
23
NASECO further ruled that the Jucoruling should not apply retroactively, considering that
prior to its promulgation on January 17, 1985, this Court had expressly recognized the applicability of the Labor Code to government-owned
or controlled corporations.
24

Lumanta, et al. v. NLRC, et al.,
25
decided on February 8, 1989, made the same pronouncement: that Juco had been superseded by the 1987
Constitution for implicit in the language of Section 2 (1), Article IX thereof, is the proposition that government-owned or controlled
corporations without original charter do not fall under the Civil Service Law but under the Labor Code.
And in PNOC-EDC v. Leogardo, etc., et al.,
26
promulgated on July 5, 1989, this Court ruled that conformably with the apparent intendment
of the NASECO case, supra, since the PNOC-EDC, a government-owned or controlled company had been incorporated under the general
Corporation Law, its employees are subject to the provisions of the Labor Code.
It is thus clear that the Juco doctrine prevailing at the time of the effectivity of the fundamental charter in 1987 i.e., that government-
owned or controlled corporations were part of the Civil Service and its employees subject to Civil Service laws and regulations,
27
regardless
of the manner of the mode of their organization or incorporation is no longer good law, being at "stark variance," to
paraphrase NASECO, with the 1987 Constitution. In other words, and contrary to the petitioner's view, as of the effectivity of the 1987
Constitution, government-owned or controlled corporations without original charters, or, as Mr. Justice Cruz insists in his concurring
opinion in NASECO v. NLRC,
28
a legislative charter (i.e., those organized under the Corporation Code), ceased to pertain to the Civil Service
and its employees could no longer be considered as subject to Civil Service Laws, rules or regulations.
The basic question is whether an employee in a government-owned or controlled corporations without an original charter (and therefore
not covered by Civil Service Law) nevertheless falls within the scope of Section 66 of the Omnibus Election Code, viz.:
Sec. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.
When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent
enactment of related and repealing legislation i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646:
"An Act Introducing Additional Reforms in the Electoral System and for Other Purposes" (effective January 5, 1988) and 6636: "An Act
Resetting the Local Elections, etc., (effective November 6, 1987), it was no doubt aware that in light of Section 2 (1), Article IX of the 1987
Constitution: (a) government-owned or controlled corporations were of two (2) categories those with original charters, and those
organized under the general law and (b) employees of these corporations were of two (2) kinds those covered by the Civil Service Law,
rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor
Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to
distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code
or subsequent related statutes, particularly as regards the rule that any employee "in government-owned or controlled corporations, shall
be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."
29

Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such
because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the
Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been
organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special
statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless "employees in government-
owned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso
facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy."
What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled
corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and
even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for
termination of employment in addition to those set forth in the Labor Code, as amended.
The conclusions here reached make unnecessary discussion and resolution of the other issues raised in this case.
WHEREFORE, the petition is GRANTED; the decision of public respondent National Labor Relations Commission dated April 24, 1991 and its
Resolution dated June 21, 1991 are NULLIFIED AND SET ASIDE; and the complaint of Manuel S. Pineda is DISMISSED. No costs.
SO ORDERED.
Padilla, Regalado and Nocon, JJ., concur.
G.R. No. 96298 May 14, 1991
RENATO M. LAPINID, petitioner,
vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents.
Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.
Adolpho M. Guerzon for J. Junsay, Jr.
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service Commission.

CRUZ, J.:p
The issue raised in this case has been categorically resolved in a long line of cases that should have since guided the policies and actions of
the respondent Civil Service Commission. Disregard of our consistent ruling on this matter has needlessly imposed on the valuable time of
the Court and indeed borders on disrespect for the highest tribunal. We state at the outset that this conduct can no longer be
countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila
International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent
Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of
the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable
position, in view of his preferential right thereto. On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went to
the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a
resolution dated February 14, 1990, the Commission disposed as follows:
After a careful review of the records of the case, the Commission finds the appeal meritorious. In the comparative
evaluation sheets, the parties were evaluated according to the following criteria, namely: eligibility; education; work
experience; productivity/performance/ attendance; integrity; initiative/leadership; and physical
characteristics/personality traits. The results of the evaluation are as follows:
JUNSAY, Juanito 79.5
VILLEGAS, Benjamin 79
LAPINID, Renato 75
DULFO, Antonio 78
MARIANO, Eleuterio 79
FLORES, Nestor 80
DE GUZMAN, Alfonso 80
VER, Cesar 80
It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and
Dulfo (78).
Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as
Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for
appointment to any position commensurate and suitable to their qualifications, and that the Commission be notified
within ten (10) days of the implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed of the appeal and had not been heard thereon, filed
a motion for reconsideration on March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority also filed its own motion
for reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion for reconsideration filed on September 14,
1990, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the respondents and in the
meantime issued a temporary restraining order. The Solicitor General took a stand against the Civil Service Commission which, at his
suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private respondent's Comment was dispensed with when
it was not filed within the prescribed period.
We see no reason to deviate from our consistent ruling on the issue before us.
In Luego v. Civil Service Commission,
1
this Court declared:
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the
ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement
by the latter?
xxx xxx xxx
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.
xxx xxx xxx
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were
qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it
from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to
revoke the said appointment simply because it believed that the private respondent was better qualifi ed for that would
have constituted an encroachment on the discretion vested solely in the city mayor.
The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v. Civil Service Commission, 171 SCRA
744; Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc, Minute
Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No.
85941, June 15, 1989, En Banc, Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989, En Banc,
Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute Resolution; Abdulwahab
A. Bayao v. Civil Service Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service Commission,
G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v.The Hon. Civil Service Commission, et al., G.R. No. 90477, September 13, 1990, En
Banc, Minute Resolution;Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11, 1990, En Banc, Minute
Resolution;Teologo v. Civil Service Commission, G.R. No. 92103, November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976,
November 15, 1990.
Only recently, in Gaspar v. Court of Appeals
2
this Court said:
The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment
in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out
that the recognition by the Commission that both the appointee and the protestant are qualified for the position in
controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity
of the former's appointment; it has no authority to revoke the appointment simply because it considers another
employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing
authority.
xxx xxx xxx
The determination of who among several candidates for a vacant position has the best qualifications is vested in the
sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular
job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic
units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team
spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands
of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for
the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this
regard.
It is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service Commission has seen fit to
ignore, if not defy, the clear mandate of the Court.
We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its
own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain i f the
appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications
should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it
believes another person is better qualified and much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the
subject of mandamus, the selection itself of the appointeetaking into account the totality of his qualifications, including those abstract
qualities that define his personalityis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the
appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the
applicable laws.
Commenting on the limits of the powers of the public respondent, Luego declared:
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree
because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein
that the Commission shall have inter alia the power to:
9(h) Approve all appointments, whether original or promotional, to positions in the civil service, except
those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen,
and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or
required qualifications. (Emphasis supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is
actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the
required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by
law to be employed by the Commission when it acts onor as the Decree says, "approves" or "disapproves'an
appointment made by the proper authorities.
The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission not to
understand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then that is
an entirely different matter and shall be treated accordingly.
We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at
bar. We must therefore make the following injunctions which the Commission must note well and follow strictly.
Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced
in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded
the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we
are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commissi on after the
date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of
the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department
and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts
are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.
The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission dated February 14, 1990, May 25, 1990,
August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, i s made
PERMANENT. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento Grio-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
G.R. No. L-3881 August 31, 1950
EDUARDO DE LOS SANTOS, petitioner,
vs.
GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USON,
in his capacity as City Auditor, respondents.
Francisco S. Reyes for petitioner.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano for respondents.
Jose P. Laurel and Abelardo Subido as amici curiae.
TUASON, J.:
This is an original action of quo warranto questioning the legality of the appointment of respondent Gil R. Mallare to the office of city
engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. The real issue however is the legality of the
petitioner's removal from the same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is the
petitioner's contention that under the Constitution he can not be removed against his will and without cause. The complaint against the
other respondents has to do merely with their recognition of Mallare as the lawful holder of the disputed office and is entirely dependent
upon the result of the basic action against the last-mentioned respondent (Mallare).
Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos, the petitioner, was appointed City
Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6,
and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, Gil R.
Mallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of the
Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos
refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid
Mallare the salary corresponding to the position, he commenced these proceedings.
The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law."
It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified service." And this Court, in an exhaustive
opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled that
officers or employees in the unclassified as well as those in the classified service are protected by the above-cited provision of the organic
law. But there is this difference between the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which falls
under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the President) to remove at pleasure any of the officers
enumerated therein, one of whom is the city engineer. The first question that presents itself is, is this provision still in force?
Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall continue in force until the inauguration of
the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unlessinconsistent with this Constitution, until
amended, altered, modified, or repealed by the Congress of the Philippines, . . . ."
It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code, he (Governor-General now President)
may remove at pleasure any of the said appointive officers," is incompatible with the constitutional inhibition that "No officer or employee
in the Civil Service shall be removed or suspended except for cause as provided by law." The two provisions are mutually repugnant and
absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits.
The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested that the President's pleasure is itself a
cause. The phrase "for cause" in connection with the removals of public officers has acquired a well-defined concept. "It means for reasons
which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the
appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those
vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office,
and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."(43 Am. Jur., 47, 48.)
Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service are concerned is urged. It is contended that
only officers and employees in the classified service should be brought within the purview of Article XII of the Constitution.
Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the Government shall be provided by law.
Appointments in the Civil Service, except as those which are policy-determining, primarily confidential or highly technical in nature, shall be
made only according to merit and fitness, to be determined as far as practicable by competitive examination." The first clause is a definition
of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service
is contemplated, except positions "which are policy-determining, primarily confidential or highly technical in nature." This theory is
confirmed by the enactment of Commonwealth Act No. 177 on November 30, 1936 to implement Article XII of the Constitution.
Commonwealth Act No. 177 explains Civil Service almost in the identical words of that article of the organic law. As a contemporaneous
construction, this Act affords an index to the meaning of Civil Service as conceived by the framers of the Constitution. "The principle of
contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with
legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight."
(U.S. vs.Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem. Murray vs. Hoboken Land and Improv. Co., 18
How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur. 699.) The principle of express mention
and implied exclusion may be made use of also to drive home this point.
We are led to the same conclusion by the existing provisions at the time of the adoption of the Constitution. Civil Service as embracing both
classes of officers and employees possessed definite legal and statutory meaning when the Constitution was approved. Section 670 of the
Revised Administrative Code already provided that "Persons in the Philippine civil service pertain either to the classified service," and went
on to say that "The classified service embraces all not expressly declared to be in the unclassified service." Then section 671 described
persons in the unclassified service as "officers, other than the provincial treasurers and assistant directors of bureaus or offices, appointed
by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of
the government whose appointments are by law vested in the President of the Philippines alone."
The rules of the construction inform us that the words use in the constitution are to be given the sense they have in common use.
(Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R., 1434; 73 Law ed., 894.) It has been said that we must look to the history of
the times, examine the state of things existing when the Constitution was framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet.,
657; 9 Law ed., 1233), and interpret it in the light of the law then in operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.)
Attention is drawn to supposed inconveniences of tying the hands of the appointing power in changing and shifting officers in the
unclassified service. "If it is argued all important officers and employees of the government falling within the unclassified service as
enumerated in section 671 of the Revised Administrative Code as amended by Commonwealth Act No. 177, may not be removed by the
President except for cause as provided by law, . . . the President would be seriously crippled in the discharge of the grave duty and
responsibility laid upon him by the Constitution to take care that the laws faithfully executed."
Questions of expediency are, of course, beyond the province of the court to take into account in the interpretation of laws or of the
Constitution where the language is otherwise clear. But the argument is, we think, unsound even if the case be approached from this angle.
It contains its own refutation. The Constitution and the law implementing it afford adequate safeguards against such consequences as have
been painted.
The argument proceeds, contrary to its context, on the assumption that removes of civil service officers and employees are absolutely
prohibited, which is not the case. The Constitution authorizes removals and only requires that they be for cause. And the occasions for
removal would be greatly diminished if the injunction of section 1 of Article XII of the Constitution that appointments in the civil service
shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination would be adhered
of meticulously in the first place.
By far greater mischiefs would be fomented by an unbridled authority to remove. Such license would thwart the very aims of the
Constitution which are expounded by Dean Aruego, himself a member of the Constitutional Convention, in the following remarks copied
with approval in Lacson vs. Romero, supra:
The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor
in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to
all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open
to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service.
The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the
government service was sanctioned in 1879 by the Constitutional right of President of the United States to act alone in the matter
of removals. From the time of Andrew Jackson the principle of the "To the victor belongs the spoils' dominated the Federal
Government. The system undermined moral values and destroyed administrative efficiency.
Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The
Schurmann Commission advocated in its reports that "the greatest care should be taken in the selection of the officials for
administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from
the government." The fifth act passed by the Philippine Commission created a Board of Civil Service. It instituted a system here
that was far more radical and thorough than that in the United States. The Governor-General after William Taft adopted the policy
of appointing Filipinos in the government regardless of their party affiliation. As the result of these the personnel of the Civil
Service had gradually come to be one of which the people of the United States could feel justly proud.
Necessity for Constitutional provision. The inclusion in the constitution of provisions regarding the "merit system" is a necessity
of modern times. As its establishment secures good government the citizens have a right to accept its guarantee as a permanent
institution.
Separation, suspension, demotions and transfers. The "merit system" will be ineffective if no safeguards are placed around the
separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in
the manner provided by law. This means that there should be bona fide reasons and action maybe taken only after the employee
shall have been given a fair hearing. This affords the public employees reasonable security of tenure. (II Aruego's Framing of the
Constitution, 886, 887, 890.)
As has been seen, three specified classes of positions policy-determining, primarily confidential and highly technical are excluded from
the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions
involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate,
or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category
determinable at the will of the officer that makes them.
The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.
Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action
for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of
Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially
ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed
to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe,
employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower
than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well
be discharged by non-technical men possessing executive ability.
Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc," and warns that "no treaty or law may be declared unconstitutional without the concurrence of
two-thirds of all the members of the Court." The question arises as to whether this judgment operates as invalidation of section 2545 of the
Revised Administrative Code or a part of it so as to need at least eight votes to make effective. The answer should be in negative.
We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional. What we declare is that the particular
provision thereof which gave the Chief Executive power to remove officers at pleasure has been repealed by the Constitution and ceased to
be operative from the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and vigor, and
unconstitutional legislation presupposes posteriority in point of time to the Constitution. It is a statute that "attempts to validate and
legalize a course of conduct the effect of which the Constitution specifically forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273;
39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in the nature of things, contravene
or pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the Constitution, assertive and
menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the
court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before this petitioner was appointed.
Incidentally, the last discussion answers and disposes of the proposition that in accepting appointment under section 2545 of the Revised
Administrative Code, the petitioner must be deemed to have accepted the conditions and limitations attached to the appointment. If the
clause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated when
petitioner's appointment was issued, the appointee can not presumed to have abided by this condition.
We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileges
appurtenant thereto, until he resigns or is removed for cause, and that respondent Mallare's appointment is ineffective in so far as it may
adversely affect those emoluments, rights and privileges. Without costs.
Moran, C.J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concur.
G.R. No. 123708 June 19, 1997
CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioners,
vs.
RAFAEL M. SALAS, respondent.

REGALADO, J.:
The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.R. SP
No. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein private
respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation
(PAGCOR), but without prejudice to the filing of administrative charges against him if warranted.
1

The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS)
member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of
PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence Divi sion of
PAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the
affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by
respondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesting
reinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed
to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was
not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the
decision of the MSPB.
2

Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. However,
in a resolution dated August 15, 1995,
3
the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95
which took effect on June 1, 1995.
On September 14, 1995, the Court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a
confidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the
"proximity rule" enunciated in the case of Grio, et al. vs.Civil Service Commission, et al.
4
It likewise held that Section 16 of Presidential
Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a
confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for several
reasons, viz.:
(1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Secti on 16
thereof that all employees of the casinos and related services shall be classified as confidential appointees;
(2) In the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al.,
5
the Supreme Court has classified PAGCOR
employees as confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointees by
operation of law; and
(4) Based on his functions as a member of the ISS, private respondent occupies a confidential position.
Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. They
additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs
in the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, which
determines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCOR
employees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of the
classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al.
6

We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil
Service Act of 1959), which was then in force when Presidential Decree No 1869 creating the Philippine Amusement and Gaming
Corporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as policy-
determining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated
t thereon, with the text thereof providing as follows:
All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the
provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management
policies set by the Board of Directors. All employees of the casinos and related services shall be classified as "confidential"
appointees.
On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it
supposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is
considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a
confidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no
longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the
1987 Constitution.
7
This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the
effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been
amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)."
However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and
related services shall be classified as 'confidential' appointees." While such executive declaration emanated merely from the provisions of
Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determining,
primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of
Executive Order No. 292 or the administrative Code of
1987.
8
This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869.
Be that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be considered
primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to
be primarily confidential; and, secondly, in the absence of such declaration, when by the nature of the functions of the office there exists
"close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom
from misgivings of betrayals of personal trust or confidential matters of state.
9

At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of
Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-competitive or unclassified service
shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-
determining, primarily confidential, or highly technical in nature." In the case of Piero, et al. vs. Hechanova, et al.,
10
the Court obliged with
a short discourse there on how the phrase "in nature" came to find its way into the law, thus:
The change from the original wording of the bill (expressly declared by law . . . to be policy-determining, etc.) to that
finally approved and enacted ("or which are policy-determining, etc. in nature") came about because of the observations
of Senator Taada, that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain
position as primarily confidential or policy-determining, which should not be the case. The Senator urged that since-the
Constitution speaks of positions which are "primarily confidential, policy-determining or highly technical in nature," it
is notwithin the power of Congress to declare what positions are primarily confidential or policy-determining. "It is
the nature alone of the position that determines whether it is policy-determining or primarily confidential." Hence, the
Senator further observed, the matter should be left to the "proper implementation of the laws, depending upon the
nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service
Commissioner must implement the law.
To a question of Senator Tolentino, "But in positions that involved both confidential matters and matters which are
routine, . . . who is going to determine whether it is primarily confidential?" Senator Taada replied:
SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position.
In case of conflict then it is the Court that determines whether the position is primarily confidential or not (Emphasis in
the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines
whether a position is primarily confidential, policy-determining or highly technical. And the Court in the aforecited case explicity decreed
that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in
case of conflict. 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 (now Section 2[3], Article IX-B) of the Constitution.
11
In other words, Section 16 of Presidential
Decree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee
to security of tenure.
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in
the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines.
12
It may well be observed that both
the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as
to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and
fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the
non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or
unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the
General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those
which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be
determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, that these
fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being
classified.
The question that may now be asked is whether the Piero doctrine to the effect that notwithstanding any statutory classification to the
contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a
position is primarily confidential, policy-determining or highly technical is still controlling with the advent of the 1987 Constitution and
the Administrative Code of 1987,
13
Book V of which deals specifically with the Civil Service Commission, considering that from these later
enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was
deleted.
14

We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986
Constitutional Commission on the Civil Service provisions, to wit:
MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-
determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is
done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily
confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For
instance, we might have a case where a position is created requiring that the holder of that position should be a member
of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a
position which requires mere membership in the Bar is not a highly technical position. Since the term "highly technical"
means something beyond the ordinary requirements of the profession, it is always a question of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive
system should be upheld?
FR. BERNAS. I agree that that should be the general rule; that is why we are putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been
the source of practices which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is
primarily confidential when in fact it is not, we can always challenge that in court.It is not enough that the law calls it
primarily confidential to make it such; it is the nature of the duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical as
an exception is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by
itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it
says is that there are certain positions which should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a
competitive examination before appointment? Or a confidential secretary or any position in policy-determining
administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness (Emphasis supplied).
15

It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the
declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of
tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive
examinations for purposes of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a
position as primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." According,
the Piero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that
PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830
must be rejected.
We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correctly
applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs.Mallare, et al.,
16
which held that:
Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position
that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties
of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state. . . . (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which are substantially similar to the case at bar, involving as it
did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held that the
mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their
positions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared:
As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the
appointing power and the appellees as would support a finding that confidence was the primary reason for the existence
of the positions held by them or for their appointment thereto.Certainly, it is extremely improbable that the service
demands any such close trust and intimate relation between the appointing official and, not one or two members alone
but the entire Customs patrol (Harbor Police) force, so that every member thereof can be said to hold "primarily
confidential" posts. (Emphasis supplied).
It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential empl oyee if the
predominant reason why he was chosen by the appointing authority was, to repeat, the latter's belief that he can share a close intimate
relationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority, the
element of trust between them is no longer predominant.
17

Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of
PAGCOR which would otherwise place him in the category of a confidential employee, to wit:
1. As an Internal Security Staff member, private respondent
routinely
a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal
transactions and other anomalous activities among the employees and customers;
b. reports unusual incidents and related observations/information in accordance with established procedures for
infractions/mistakes committed on the table and in other areas;
c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any
unwanted incidents at the gaming and non-gaming areas;
d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final
shuffling;
e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or
during transfer of yields to Treasury.
18

Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that
honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such close
intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would insure "freedom from misgivings of
betrayals of personal trust."
19

2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their
official duties. An ISS member is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of
the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in
the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas
the highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debate
that private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the
ordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the position
occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appears
nothing to suggest that private respondent's position was "highly" or, much less, "primarily" confidential in nature. The fact that,
sometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not
suffice to characterize his position as primarily confidential.
20

In addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine
Amusement and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there stated is as follows:
The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides
that the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act
that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled him to
damages under the Civil Code. (Emphasis ours).
Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee, for
the simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therein.
That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidently,
therefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases where its
validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that
question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law.
21

WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.
CIVIL SERVICE COMMISSION,

G.R. No. 173264
Petitioner,




Present:





PUNO, C.J.,


QUISUMBING,


YNARES-SANTIAGO,


SANDOVAL-GUTIERREZ,


CARPIO,


AUSTRIA-MARTINEZ,


CORONA,
- versus -

CARPIO MORALES,


AZCUNA,


TINGA,


CHICO-NAZARIO,


VELASCO, JR.,


NACHURA,


REYES, and


LEONARDO-DE CASTRO, JJ.



NITA P. JAVIER,

Promulgated:
Respondent.

February 22, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


AUSTRIA-MARTINEZ, J.:


Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse the Decision[1] of the Court of
Appeals (CA) dated September 29, 2005, as well as its Resolution of June 5, 2006, in CA-G.R. SP No. 88568, which set aside the resolutions
and orders of the Civil Service Commission (CSC) invalidating the appointment of respondent as Corporate Secretary of the Board of Trustees
of the Government Service and Insurance System (GSIS).

The facts are undisputed.

According to her service record,[2] respondent was first employed as Private Secretary in the GSIS, a government owned and controlled
corporation (GOCC), on February 23, 1960, on a confidential status. On July 1, 1962, respondent was promoted to Tabulating Equipment
Operator with permanent status. The permanent status stayed with respondent throughout her career. She spent her entire career
with GSIS, earning several more promotions, until on December 16, 1986, she was appointed Corporate Secretary of the Board of Trustees of
the corporation.

On July 16, 2001, a month shy of her 64th birthday,[3] respondent opted for early retirement and received the corresponding monetary
benefits.[4]

On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the Board of Trustees, reappointed respondent as Corporate
Secretary, the same position she left and retired from barely a year earlier. Respondent was 64 years old at the time of her
reappointment.*5+ In its Resolution, the Board of Trustees classified her appointment as confidential in nature and the tenure of office is at
the pleasure of the Board.*6+

Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her service and circumvent the laws
on compulsory retirement.[7] This is because under Republic Act (R.A.) No. 8291, or the Government Service Insurance System Act of 1997,
the compulsory retirement age for government employees is 65 years, thus:

Sec. 13. x x x

(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at sixty-five (65) years of age
with at least fifteen (15) years of service: Provided, That if he has less than fifteen (15) years of service, he may be allowed to continue in the
service in accordance with existing civil service rules and regulations.

Under the civil service regulations, those who are in primarily confidential positions may serve even beyond the age of 65 years. Rule XIII of
the Revised Omnibus Rules on Appointments and Other Personnel Actions, as amended, provides that:

Sec. 12. (a) No person who has reached the compulsory retirement age of 65 years can be appointed to any position in the
government, subject only to the exception provided under sub-section (b) hereof.

x x x x

b. A person who has already reached the compulsory retirement age of 65 can still be appointed to a coterminous/primarily confidential
position in the government.

A person appointed to a coterminous/primarily confidential position who reaches the age of 65 is considered automatically extended in the
service until the expiry date of his/her appointment or until his/her services are earlier terminated.[8]

It is for these obvious reasons that respondent's appointment was characterized as confidential by the GSIS.

On October 10, 2002, petitioner issued Resolution No. 021314, invalidating the reappointment of respondent as Corporate
Secretary, on the ground that the
position is a permanent, career position and not primarily confidential.[9]

On November 2, 2002, the CSC, in a letter of even date, through its Chairperson Karina Constantino-David, informed GSIS of CSC's
invalidation of respondent's appointment, stating, thus:

Records show that Ms. Javier was formerly appointed as Corporate Secretary in a Permanent capacity until her retirement in July 16, 2001.
The Plantilla of Positions shows that said position is a career position. However, she was re-employed as Corporate Secretary, a position now
declared as confidential by the Board of Trustees pursuant to Board Resolution No. 94 dated April 3, 2002.

Since the position was not declared primarily confidential by the Civil Service Commission or by any law, the appointment of Ms. Javier as
Corporate Secretary is hereby invalidated.[10]

Respondent and GSIS sought to reconsider the ruling of petitioner. CSC replied that the position of Corporate Secretary is a
permanent (career) position, and not primarily confidential (non-career); thus, it was wrong to appoint respondent to this position since she
no longer complies with eligibility requirements for a permanent career status. More importantly, as respondent by then has reached
compulsory retirement at age 65, respondent was no longer qualified for a permanent career position. [11] With the denial of respondent's
plea for reconsideration, she filed a Petition for Review with the Court of Appeals.

On September 29, 2005, the CA rendered a Decision setting aside the resolution of petitioner invalidating respondent's
appointment.[12] The CA ruled that in determining whether a position is primarily confidential or otherwise, the nature of i ts functions,
duties and responsibilities must be looked into, and not just its formal classification.[13] Examining the functions, duties and responsibilities
of the GSIS Corporate Secretary, the CA concluded that indeed, such a position is primarily confidential in nature.

Petitioner filed a motion for reconsideration, which was denied by the CA on June 5, 2006.

Hence, herein petition.

The petition assails the CA Decision, contending that the position of Corporate Secretary is a career position and not primarily
confidential in nature.[14] Further, it adds that the power to declare whether any position in government is primarily confidential, highly
technical or policy determining rests solely in petitioner by virtue of its constitutional power as the central personnel agency of the
government.[15]

Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature and that it is within the
powers of the GSIS Board of Trustees to declare it so.[16] She argues that in determining the proper classification of a position, one should
be guided by the nature of the office or position, and not by its formal designation.[17]

Thus, the Court is confronted with the following issues: whether the courts may determine the proper classification of a posi tion in
government; and whether the position of corporate secretary in a GOCC is primarily confidential in nature.


The Court's Ruling

The courts may determine the proper
classification of a position in government.

Under Executive Order No. 292, or the Administrative Code of 1987, civil service positions are currently classified into either 1) career
service and 2) non-career service positions.[18]

Career positions are characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of
tenure.[19]

In addition, the Administrative Code, under its Book V, sub-classifies career positions according to appointment status, divided into:
1) permanent which is issued to a person who meets all the requirements for the positions to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof; and 2)
temporary which is issued, in the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, to
a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility;
provided, that such temporary appointment shall not exceed twelve months, and the appointee may be replaced sooner if a
qualified civil service eligible becomes available.[20]

Positions that do not fall under the career service are considered non-career positions, which are characterized by: (1) entrance on
bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limit ed to a period
specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration
of a particular project for which purpose employment was made.[21]

Examples of positions in the non-career service enumerated in the Administrative Code are:

Sec. 9. Non-Career Service. - x x x

The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or
confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific
work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specifi c period, which in
no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis supplied)

A strict reading of the law reveals that primarily confidential positions fall under the non-career service. It is also clear that, unlike
career positions, primarily confidential and other non-career positions do not have security of tenure. The tenure of a confidential employee
is co-terminous with that of the appointing authority, or is at the latter's pleasure. However, the confidential employee may be appointed
or remain in the position even beyond the compulsory retirement age of
65 years.[22]

Stated differently, the instant petition raises the question of whether the position of corporate secretary in a GOCC, currently
classified by the CSC as belonging to the permanent, career service, should be classified as primarily confidential, i.e., belonging to the non-
career service. The current GSIS Board holds the affirmative view, which is ardently opposed by petitioner. Petitioner maintains that it alone
can classify government positions, and that the determination it made earlier, classifying the position of GOCC corporate secretary as a
permanent, career position, should be maintained.

At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily confi dential
positions in the civil service. Neither is there a law that gives an enumeration of positions classified as primarily confidential.

What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which describe or give
examples of confidential positions in government.

Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already made by an agency
or branch of government?

Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by the legislative or
executive branches, or even by a constitutional body like the petitioner.[23] The Court is expected to make its own determination as to the
nature of a particular position, such as whether it is a primarily confidential position or not, without being bound by prior classifications
made by other bodies.[24] The findings of the other branches of government are merely considered initial and not conclusive to the
Court.[25] Moreover, it is well-established that in case the findings of various agencies of government, such as the petitioner and the CA in
the instant case, are in conflict, the Court must exercise its constitutional role as final arbiter of all justiciable controversies and disputes.[26]

Piero v. Hechanova,[27] interpreting R.A. No. 2260, or the Civil Service Act of 1959, emphasized how the legislature refrai ned from
declaring which positions in the bureaucracy are primarily confidential, policy determining or highly technical in nature, and declared that
such a determination is better left to the judgment of the courts. The Court, with the ponencia of Justice J.B.L. Reyes, expounded, thus:

The change from the original wording of the bill (expressly declared by law x x x to be policy determining, etc.) to that finally approved and
enacted (or which are policy determining, etc. in nature) came about because of the observations of Senator Taada, that as originally
worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy determining,
which should not be the case. The Senator urged that since the Constitution speaks of positions which are primarily confidential, policy
determining or highly technical in nature, it is not within the power of Congress to declare what positions are primarily confidential or
policy determining. It is the nature alone of the position that determines whether it is policy determining or primarily confidential. Hence,
the Senator further observed, the matter should be left to the proper implementation of the laws, depending upon the nature of the
position to be filled, and if the position is highly confidential then the President and the Civil Service Commissioner must implement the
law.

To a question of Senator Tolentino, But in positions that involved both confidential matters and matters which are routine, x x x who is
going to determine whether it is primarily confidential? Senator Taada replied:

SENATOR TAADA: Well. at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict
then it is the Court that determines whether the position is primarily confidential or not.
I remember a case that has been decided by the Supreme Court involving the position of a district engineer in Baguio, and there. precisely,
the nature of the position was in issue. It was the Supreme Court that passed upon the nature of the position, and held that the President
could not transfer the district engineer in Baguio against his consent.

Senator Taada, therefore, proposed an amendment to section 5 of the bill, deleting the words to be and inserting in lieu t hereof the
words Positions which are by their nature policy determining, etc., and deleting the last words in nature. Subsequently, Senator Padilla
presented an amendment to the Taada amendment by adopting the very words of the Constitution, i.e., those which are policy
determining, primarily confidential and highly technical in nature. The Padilla amendment was adopted, and it was this last wording with
which section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681).

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 title Chief
Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII, of the Constitution.[28] (Emphasis and
underscoring supplied)

This doctrine in Piero was reiterated in several succeeding cases.[29]

Presently, it is still the rule that executive and legislative identification or classification of primarily confidential, policy-determining or
highly technical positions in government is no more than mere declarations, and does not foreclose judicial review, especiall y in the event of
conflict. Far from what is merely declared by executive or legislative fiat, it is the nature of the position which finally determines whether it
is primarily confidential, policy determining or highly technical, and no department in government is better qualified to make such an
ultimate finding than the judicial branch.

Judicial review was also extended to determinations made by petitioner. In

Grio v. Civil Service Commission,[30] the Court held:

The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service
and certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the
position of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the same
was primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primarily
confidential position. To rule otherwise would be tantamount to classifying two positions with the same nature and functions in two
incompatible categories.[31]

The framers of the 1987 Constitution were of the same disposition. Section 2 (2) Article IX (B) of the Constitution provides that:

Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and,
except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

The phrase in nature after the phrase policy-determining, primarily confidential, or highly technical was deleted from the 1987
Constitution.[32] However, the intent to lay in the courts the power to determine the nature of a position is evident in the following
deliberation:

MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primarily
confidential or highly technical?

FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court.
The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is
determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is
created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical.
However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position.
Since the term 'highly technical' means something beyond the ordinary requirements of the profession, it is always a question of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be
upheld?

FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an exception.

MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of
practices which amount to the spoils system.

FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily
confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make
it such; it is the nature of the duties which makes a position primarily confidential.

MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical as an exception is
to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of
certain privileges not available to the ordinary run of government employees and officers.

FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there
are certain positions which should not be determined by competitive examination.

For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive
examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matter?
There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and
fitness.[33] (Emphasis supplied)

This explicit intent of the framers was recognized in Civil Service Commission v. Salas,[34] and Philippine Amusement and Gaming
Corporation v. Rilloraza,[35] which leave no doubt that the question of whether the position of Corporate Secretary of GSIS is confidential in
nature may be determined by the Court.

The position of corporate secretary in a government owned
and controlled corporation, currently classified as a permanent
career position, is primarily confidential in nature.

First, there is a need to examine how the term primarily confidential in nature is described in jurisprudence. According to Salas,[36]

Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260), there were two recognized instances when a position may be
considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the
position to be primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office there
exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust or confidential matters of state.[37] (Emphasis supplied)

However, Salas declared that since the enactment of R.A. No. 2260 and Piero,[38] it is the nature of the position which finally determines
whether a position is primarily confidential or not, without regard to existing executive or legislative pronouncements either way, since the
latter will not bind the courts in case of conflict.

A position that is primarily confidential in nature is defined as early as 1950 in De los Santos v. Mallare,[39] through the ponencia of
Justice Pedro Tuason, to wit:

x x x These positions (policy-determining, primarily confidential and highly technical positions), involve the highest degree of confidence, or
are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be sai d
that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that makes
them.

x x x x

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is
primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily
close intimacy which insures freedom of [discussion, delegation and reporting] without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state. x x x[40] (Emphasis supplied)

Since the definition in De los Santos came out, it has guided numerous other cases.[41] Thus, it still stands that a position is primarily
confidential when by the nature of the functions of the office there exists close intimacy between the appointee and appointing power
which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confi dential
matters of state.

In classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in character.[42] A
position is not necessarily confidential though the one in office may sometimes handle confidential matters or documents.[43] Only ordinary
confidence is required for all positions in the bureaucracy. But, as held in De los Santos,[44] for someone holding a primarily confidential
position, more than ordinary confidence is required.

In Ingles v. Mutuc,[45] the Court, through Chief Justice Roberto Concepcion as ponente, stated:

Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle matters of similar nature.
The Presiding and Associate Justices of the Court of Appeals sometimes investigate, by designation of the Supreme Court, administrative
complaints against judges of first instance, which are confidential in nature. Officers of the Department of Justice, likewise, investigate
charges against municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against
members of the Bar. All of these are confidential matters, but such fact does not warrant the conclusion that the office or position of all
government physicians and all Judges, as well as the aforementioned assistant solicitors and officers of the Department of Justice are
primarily confidential in character.[46] (Emphasis supplied)

It is from De los Santos that the so-called proximity rule was derived. A position is considered to be primarily confidential when
there is a primarily close intimacy between the appointing authority and the appointee, which ensures the highest degree of t rust and
unfettered communication and discussion on the most confidential of matters.[47] This means that where the position occupied is already
remote from that of the appointing authority, the element of trust between them is no longer predominant.[48] On further interpretation in
Grio, this was clarified to mean that a confidential nature would be limited to those positions not separated from the position of the
appointing authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy.[49]

Consequently, brought upon by their remoteness to the position of the appointing authority, the following were declared by the Court
to be not primarily confidential positions: City Engineer;[50] Assistant Secretary to the Mayor;[51] members of the Customs Police Force or
Port Patrol;[52] Special Assistant of the Governor of the Central Bank, Export Department;[53] Senior Executive Assistant, Clerk I and
Supervising Clerk I and Stenographer in the Office of the President;[54] Management and Audit Analyst I of the Finance Ministry Intelligence
Bureau;[55] Provincial Administrator;[56] Internal Security Staff of the Philippine Amusement and Gaming Corporation (PAGCOR);[57]
Casino Operations Manager;[58] and Slot Machine Attendant.[59] All positions were declared to be not primarily confidential despite
having been previously declared such either by their respective appointing authorities or the legislature.

The following were declared in jurisprudence to be primarily confidential positions: Chief Legal Counsel of the Philippine National Bank;[60]
Confidential Agent of the Office of the Auditor, GSIS;[61] Secretary of the Sangguniang Bayan;[62] Secretary to the City Mayor;[63] Senior
Security and Security Guard in the Office of the Vice Mayor;[64] Secretary to the Board of a government corporation;[65] City Legal Counsel,
City Legal Officer or City Attorney;[66] Provincial Attorney;[67] Private Secretary;[68] and Board Secretary II of the Philippine State College of
Aeronautics.[69]

In fine, a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as well
as the high degree of trust and confidence inherent in their relationship.

Ineluctably therefore, the position of Corporate Secretary of GSIS, or any GOCC, for that matter, is a primarily confidential position.
The position is clearly in close proximity and intimacy with the appointing power. It also calls for the highest degree of confidence between
the appointer and appointee.

In classifying the position of Corporate Secretary of GSIS as primarily
confidential, the Court took into consideration the proximity rule together with the duties of the corporate secretary, enumerated as
follows:[70]

1. Performs all duties, and exercises the power, as defined and enumerated in Section 4, Title IX, P.D. No. 1146;
2. Undertakes research into past Board resolutions, policies, decisions, directives and other Board action, and relate these to
present matters under Board consideration;
3. Analyzes and evaluates the impact, effects and relevance of matters under Board consideration on existing Board policies and
provide the individual Board members with these information so as to guide or enlighten them in their Board decision;
4. Records, documents and reproduces in sufficient number all proceedings of Board meetings and disseminate relevant Board
decisions/information to those units concerned;
5. Coordinates with all functional areas and units concerned and monitors the manner of implementation of approved Board
resolutions, policies and directives;
6. Maintains a permanent, complete, systematic and secure compilation of all previous minutes of Board meetings, together with
all their supporting documents;
7. Attends, testifies and produces in Court or in administrative bodies duly certified copies of Board resolutions, whenever
required;
8. Undertakes the necessary physical preparations for scheduled Board meetings;
9. Pays honoraria of the members of the Board who attend Board meetings;
10. Takes custody of the corporate seal and safeguards against unauthorized use; and
11. Performs such other functions as the Board may direct and/or require.

The nature of the duties and functions attached to the position points to its highly confidential character.[71] The secretary reports directly
to the board of directors, without an intervening officer in between them.[72] In such an arrangement, the board expects from the secretary
nothing less than the highest degree of honesty, integrity and loyalty, which is crucial to maintaining between them freedom of intercourse
without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state.*73+

The responsibilities of the corporate secretary are not merely clerical or
routinary in nature. The work involves constant exposure to sensitive policy matters and confidential deliberations that are not always open
to the public, as unscrupulous persons may use them to harm the corporation. Board members must have the highest confidence in the
secretary to ensure that their honest sentiments are always and fully expressed, in the interest of the corporation. In this respect, the nature
of the corporate secretary's work is akin to that of a personal secretary of a public official, a position long recognized to be primarily
confidential in nature.[74] The only distinction is that the corporate secretary is secretary to the entire board, composed of a number of
persons, but who essentially act as one body, while the private secretary works for only one person. However, the degree of confidence
involved is essentially the same.

Not only do the tasks listed point to sensitive and confidential acts that the corporate secretary must perform, they also include such
other functions as the Board may direct and/or require, a clear indication of a closely intimate relationship that exists between the
secretary and the board. In such a highly acquainted relation, great trust and confidence between appointer and appointee is required.

The loss of such trust or confidence could easily result in the board's termination of the secretary's services and ending of his term.
This is understandably justified, as the board could not be expected to function freely with a suspicious officer in its midst. It is for these
same reasons that jurisprudence, as earlier cited, has consistently characterized personal or private secretaries, and board secretaries, as
positions of a primarily confidential nature.[75]

The CA did not err in declaring that the position of Corporate Secretary of GSIS is primarily confidential in nature and does not belong
to the career service.
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers
likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified
as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of
corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classifi ed as
confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which
positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view i s that the greater
public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.

Moreover, it is a basic tenet in the country's constitutional system that public office is a public trust,*76+ and that there is no vested
right in public office, nor an absolute right to hold office.[77] No proprietary title attaches to a public office, as public service is not a
property right.[78] Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to
have any vested right in an office.[79] The rule is that offices in government, except those created by the constitution, may be abolished,
altered, or created anytime by statute.[80] And any issues on the classification for a position in government may be brought to and
determined by the courts.[81]

WHEREFORE, premises considered, the Petition is DENIED. The
Decision of the Court of Appeals dated September 29, 2005, in CA-G.R. SP No. 88568, as well as its Resolution of June 5, 2006 are hereby
AFFIRMED in toto.

No costs.

SO ORDERED.

G.R. No. 91602 February 26, 1991
HONORABLE SIMPLICIO C. GRIO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA, MANUEL B. TRAVIA and MANUEL M.
CASUMPANG, petitioners,
vs.
CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON, TEODULFO DATO-ON, and NELSON GEDUSPAN, respondents.
Sixto P. Demaisip for petitioners.
Rex C. Muzones for private respondents.
Thelma A. Panganiban-Gaminde, Rogelio C. Limare and Normita M. Llamas-Villanueva for Civil Service Commission.

GANCAYCO, J.:p
The main issue in this petition is whether or not the position of a provincial attorney and those of his legal subordinates are primarily
confidential in nature so that the services of those holding the said items can be terminated upon loss of confidence.
The facts of this case are simple.
Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this position from April 3, 1973 up to June 2, 1986
when he offered to resign and his resignation was accepted by the then Acting Governor. In his resignation letter, petitioner Demaisip
recommended the elevation of respondent Teotimo Arandela from Senior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tirador
later on decided to appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo Gelvezon, on the other hand, was promoted
from Legal Officer II to Senior Legal Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the position of Legal
Officer II.
On February 2, 1988, petitioner Simplicio Grio assumed office as the newly elected governor of Iloilo. One month later, he i nformed
respondent Arandela and all the legal officers at the Provincial Attorney's Office about his decision to terminate their services. In his letter,
petitioner Grio made mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in the Panay News and
which "undermined that trust and confidence" that he reposed on them. Petitioner Demaisip was reappointed by Governor Grio as the
Provincial Attorney, The latter, on the other hand, arranged the replacements of the other legal officers. Respondent Cirilo Gelvezon was
replaced by petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner Manuel Casumpang and petitioner
Manuel Travia took the place of respondent Teodolfo Dato-on.
On March 15, 1988, petitioner Governor Grio formally terminated the services of the respondents herein on the ground of loss of trust
and confidence. This action taken by the governor was appealed by respondents to the Merit Systems Protection Board of the Civil Service
Commission.
On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents' termination illegal and ordering that they be
immediately restored to their positions with back salaries and other emoluments due them. This was appealed by petitioner Gri o to the
Civil Service Commission.
In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the Order of the Merit Systems Protection Board,
and directed that the respondents be restored to their former legal positions and be paid back salaries and other benefits.
Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil Service Commission. The motion was denied on
December 7, 1989 in Resolution No. 89-920.
Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of the Civil Service Commission and
Resolution No. 89-920 which denied the Motion for Reconsideration.
We shall first discuss whether the position of a provincial attorney is primarily confidential so that the holder thereof may be terminated
upon loss of confidence.
In Cadiente vs. Santos,
1
this Court ruled that the position of a city legal officer is undeniably one which is primarily confidential in this
manner:
In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one
which is "primarily confidential." This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481,
that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to
said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is
one that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the case of
Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phrase
"primarily confidential" "denotes not only confidence in the aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse, without embarrassment or freedom from misgivings of
betrayals of personal trust on confidential matters of state. (Emphasis supplied.)
The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office
lasts only as long as confidence in them endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-
23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated
from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-
17287, June 30, 1965, 14 SCRA 548, it was held
It is to be understood of course that officials and employees holding primarily confidential positions continue only for so
long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of
confidence because in that case their cessation from office involves no removal but merely the expiration of the term of
office two different causes for the termination of official relations recognized in the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not
removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of
the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for
cause as provided by law" (Article XII-B, Section 1 (3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal
or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA
171, in this wise:
When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the
pleasure turns into a displeasure, the incumbent is not removed or dismissed from office his term merely expires, in
much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been
appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term.
The main difference between the former the primary confidential officer and the latter is that the latter's term is
fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election,
and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the
incumbent. When this event takes place, the latter is not removed or dismissed from office his term merely expired.
The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs.
Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that:
The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office
lasts only as long as confidence in them endures, and thus their cessation involves no removal.
2

In Besa vs. Philippine National Bank,
3
where petitioner, who was the Chief Legal Counsel with the rank of Vice President of the respondent
Philippine National Bank, questioned his being transferred to the position of Consultant on Legal Matters in the Office of President, this
Court, considering said position to be primarily confidential held
It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that
matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a
client is precluded from substituting in his stead another practitioner. That is his right; Ms decision to terminate the
relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough
that his right to compensation earned be duly respected.
In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential,
there can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the language of
the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of
petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. As
thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain his position
as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053.
The question now is should the ruling in Cadiente be made applicable to a provincial attorney? According to the
petitioners, Cadiente must be applied because by the nature of the functions of a provincial attorney and a city legal officer, their positions
are both primarily confidential. Respondents, on the other hand, maintain that since the Civil Service Commission has already classified the
position of private respondent Arandela as a career position and certified the same as permanent, he is removable only for cause, and
therefore Cadiente is not applicable.
We agree with the petitioners and answer the question earlier propounded in the affirmative. A city legal officer appointed by a city mayor
to work for and in behalf of the city has for its counterpart in the province a provincial attorney appointed by the provincial governor. In the
same vein, a municipality may have a municipal attorney who is to be named by the appointing power. The positions of city legal officer and
provincial attorney were created under Republic Act No. 5185 which categorized them together as positions of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. To enable the provincial and city
governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorney
and city legal officer may be created and such officials shall be appointed in such manner as is provided for under Section
four of this Act. For this purpose the functions hitherto performed by the provincial and city fiscals in serving as legal
adviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city legal
officer, respectively. (Emphasis supplied.)
4

By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the legal adviser and legal officer for
the civil cases of the province and the city that they work for. Their services are precisely categorized by law to be "trusted
services."
A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of the
provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential nature
of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he serves.
The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest
degree of trust.
5

The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service and
certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the
position of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the same
was primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primarily
confidential position. To rule otherwise would be tantamount to classifying two positions with the same nature and functions in two
incompatible categories. This being the case, and following the principle that the tenure of an official holding a primarily confidential
position ends upon loss of confidence,
6
the Court finds that private respondent Arandela was not dismissed or removed from office when
his services were terminated. His term merely expired.
The attorney-client relationship is strictly personal because it involves mutual trust and confidence of the highest degree, irrespective of
whether the client is a private person or a government functionary.
7
The personal character of the relationship prohibits its delegation in
favor of another attorney without the client's consent.
8

However, the legal work involved, as distinguished from the relationship, can be delegated.
9
The practice of delegating work of a counsel to
his subordinates is apparent in the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officer to
exercise administrative supervision and control over the acts and decision of his subordinates.
10

It is therefore possible to distinguish positions in the civil service where lawyers act as counsel in confidential and non-confidential positions
by simply looking at the proximity of the position in question in relation to that of the appointing authority. Occupants of such positions
would be considered confidential employees if the predominant reason they were chosen by the appointing authority is the latter's belief
that he can share a close intimate relationship with the occupant which measures freedom of discussion, without fear of embarrassment or
misgivings of possible betrayal of personal trust on confidential matters of state.
11

This implies that positions in the civil service of such nature would be limited to those not separated from the position of the appointing
authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy. This is an additional reason why the
positions of "City Legal Officer" and "Private Secretary to the President" were considered primarily confidential by the Court.
12
On the
other hand, a customs policeman serving in the Harbor Patrol, in relation to the Commissioner of Customs, and an executive assistant,
stenographer, or clerk in the Office of the President, were not considered so by the Court.
13

There is no need to extend the professional relationship to the legal staff which assists the confidential employer above described. Since
the positions occupied by these subordinates are remote from that of the appointing authority, the element of trust between them is no
longer predominant. The importance of these subordinates to the appointing authority now lies in the contribution of their legal skills to
facilitate the work of the confidential employee. At this level of the bureaucracy, any impairment of the appointing authority's interest as a
client, which may be caused through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and prevented
by the confidential employee, as a reasonably competent office head, through the exercise of his power to "review,
approve, reverse, or modify" their acts and decisions.
14
At this level, the client can be protected without need of imposing upon the lower-
ranked lawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there is now no obstacle to giving full effect to the
security of tenure principle to these members of the civil service.
Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson
Geduspan, the Cadiente and Besa rulings cannot apply. To recall, said cases specifically dealt with the positions of city legal officer of the
city and chief legal counsel of the PNB. There was no reference to their legal staff or subordinates. As head of their respective departments,
the city legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened to their subordinates. The l atter have been
employed due to their technical qualifications. Their positions are highly technical in character and not confidential, so they are permanent
employees, and they belong to the category of classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer and
Legal Officer II remain permanent as classified by the Civil Service Commission. Consequently, the holders of the said items, being
permanent employees, enjoy security of tenure as guaranteed under the Constitution.
This notwithstanding, petitioners contend that respondents are estopped from protesting the termination of their services because of their
actions which, if taken together, would allegedly reveal that they have accepted their termination, such as: applying for clearances, not
remaining in office and signing their payroll for March 15, 1988 acknowledging therein that their appointment "terminated/expired."
We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts because their services were actually
dispensed with by petitioner Governor Grio. As a consequence of their termination, they could not remain in office and as required of any
government employee who is separated from the government service, they had to apply for clearances. However, this did not mean that
they believed in principle that they were validly terminated. The same should not prevent them from later on questioning the validity of
said termination.
The facts clearly show that respondents protested their termination with the Civil Service Commission within a month from the time of
their termination. The Court holds that the said protest was filed within a reasonable period of time.
WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the position of provincial attorney of Iloil o. Respondent
Teotimo Arandela is hereby ordered to vacate said position upon the finality of this Decision. The Decision of the respondent Civil Service
Commission pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Medialdea and Regalado, JJ., concur.
Gutierrez, Jr., J., concurs in the result.
Grio-Aquino and Davide, Jr., JJ., took no part.

G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO,
RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the
Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.

D E C I S I O N

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of
rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board
(Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the
BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the
Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy
Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized
organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel
in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions,
including the issuance of rules and regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and
regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They
contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC
into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with
utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC
violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system
should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard
on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service i f their revenue
collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of
revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of
powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of
the congressional oversight committee permits legislative participation in the implementation and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual
case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction.
Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in thi s case. They
assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen
in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are
distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide
the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances,
rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation
of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the
presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.10 A
closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question i s ripe for
adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for
judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even
without any further overt act,13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse
effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account,
their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he
holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all
government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR
and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for
the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-
generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in
advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy.

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries"
is not only without any factual and legal basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based on petitioners baseless
supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved i t.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system
of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it
recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an
amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United
States,18 the U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecti ng fraudulent attempts
to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the
enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the
reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance
of official duties. One of these precautionary measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the
[BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is
equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to
be accomplished.19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v.
Elizalde Rope Workers Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is
not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require
that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law
is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to
the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and
is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification
may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and
not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection
of the BIR and the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns onl y the BIR and
the BOC because they have the common distinct primary function of generating revenues for the national government through the collection
of taxes, customs duties, fees and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the
DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter
referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25

xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through
which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately
related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 full y satisfy the
demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is
complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate.26 It lays down a sufficient
standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent
the delegation from running riot.27 To be sufficient, the standard must specify the limits of the delegates authority, announce the
legislative policy and identify the conditions under which it is to be implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in
carrying out the provisions of the law. Section 2 spells out the policy of the law:

SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their
officials and employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced
from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Excess the Revenue Targets

Percent (%) of the Excess Collection to Accrue to the Fund

30% or below

15%

More than 30%

15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was
exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in
the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case of the BIR, and the collection
districts in the case of the BOC.

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year
as approved by the DBCC and stated in the BESF submitted by the President to Congress.30 Thus, the determination of revenue targets does
not rest solely on the President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which officials and employees
whose revenue collection falls short of the target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by
at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules
and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and
procedural due process: Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection
performance that can be used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the
transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulti es brought about
by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after
careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the
Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of
tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due
process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection
falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32
The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process.

At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience and
welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability and
collection of the BIR and the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the
Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed
by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the impl ementing
rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations
(IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, i t became functus
officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law
may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint
Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on
Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over
the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate
executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the
congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent
in a democratic system of government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of
power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority
to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative
agencies perform their functions within the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny,
investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine
economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information
and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency
involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation
involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision"
connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to
influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-
making authority, and permits Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an
agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes
effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period
of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a
proposed regulation will become law if Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches
of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One
proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that
the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad
policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress
articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed
with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be
effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change
existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is
appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-
enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would
undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion
of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents
counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from
accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take
effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch
pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the
accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most
efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisi ons. The case
arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in
the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered
deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens
deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers
and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially
legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a
majority of both Houses and presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto
provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence,
lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both
Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voti ng Act of
2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the
said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these
functions infringed on the constitutional independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is i ntegral to
the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents
the over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and
related constraints on Congress.37 It may not vest itself, any of its committees or its members with either executive or judicial power.38 And,
when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution,39 including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional
oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of
legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fal l in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove
such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which
Congress has by law initially delegated broad powers.43 It radically changes the design or structure of the Constitutions diagram of power
as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence.45 It
can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in
conformity with those standards.46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the
hands of the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it formul ates rules and
regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual
operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have
the force of law and are entitled to respect.49 Such rules and regulations partake of the nature of a statute50 and are just as binding as if
they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and
legality until they are set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an
overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers
established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the
Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity
violates the cardinal constitutional principles of bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which consists of two chambers, the
Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollaril y, it can be
exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a
legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he
shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill
passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive.
Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved
by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress.54 Second, it must be
presented to and approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is
the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the
former chamber.

The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the
proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public
hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated
upon and amended when desired. The second reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate
is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences
between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise measure
that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President,
the Speaker, and the Secretaries of their respective chambers59

The Presidents role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards establ ished in the
said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights
and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under
the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, i t is only upon its
effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point,
the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.63

From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a
provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the
executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisi ons of other
laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the
proper time when an appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law?
Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision
not affected by such declaration of invalidity shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legi slative
intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other
provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without
Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize
the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the
Rewards and Incentives Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation66 and became
effective 15 days thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of
the Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to
approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in
force and effect.

SO ORDERED.

CIVIL SERVICE
COMMISSION,
Petitioner,









- versus -







GREGORIO MAGNAYE, JR.,
Respondent.

G.R. NO. 183337

Present:

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

Promulgated:

April 23, 2010





X ------------------------------------------------------------------------------------- X






D E C I S I O N

MENDOZA, J.:

The Civil Service Commission (CSC) assails in this petition for review on certiorari,[1] the February 20, 2008 Decision[2] and the June 11, 2008
resolution of the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA reversed the July 20, 2004 Decision of the Civil Service Commission
Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of respondent Gregorio Magnaye, Jr. (Magnaye) with payment of
backwages and other monetary benefits.



THE FACTS

In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker I at the Office of Economic Enterprise
[Operation of Market] (OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and Development Office.

In the May elections of that year, Mayor Rosales was defeated by Raul L. Bendaa, who assumed office on June 30, 2001. Thereafter,
Magnaye was returned to his original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at the Municipal
Planning and Development Office to assist in the implementation of a Survey on the Integrated Rural Accessibility Planning Project.



On August 13, 2001, the new mayor served him a notice of termination from employment effective the following day for unsatisfactory
conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground that Mayor Bendaa was not in a position to effectively
evaluate his performance because it was made less than one and one-half months after his (Mayor Bendaas) assumption to office. He
added that his termination was without basis and was politically motivated.

The CSC head office dismissed, without prejudice, Magnayes complaint because he failed to attach a certificate of non-forum shopping.
Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV).

The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his dismissal from the service on the ground that Mayor Bendaas
own assessment, together with the evaluation made by his supervisors, constituted sufficient and reasonable grounds for his termination.

Magnaye sought recourse through a petition for review with the Court of Appeals, citing CSCRO-IVs alleged errors of fact and of law, non-
observance of due process, and grave abuse of discretion amounting to lack or excess of jurisdiction. Adopting the stance of the Office of the
Solicitor General, the CA ruled in Magnayes favor, mainly on the ground that he was denied due process since he was not informed of what
constituted the alleged unsatisfactory conduct and want of capacity that led to his termination. It summarized the positions of the OSG as
follows:



On January 18, 2005, the Office of the Solicitor General (OSG) filed its manifestation and motion, in lieu of comment, praying that the
assailed decision be set aside. The OSG argued that Petitioners termination was illegal. The notice of termination did not cite the specific
instances indicating Petitioners alleged unsatisfactory conduct or want of capacity. It was only on July 29, 2003, or almost two years after
Petitioners dismissal on August 13, 2001 that his former Department Heads, Engr. Magsino and Engr. Masongsong, submitted an
assessment and evaluation report to Mayor Bendaa, which the latter belatedly solicited when the Petitioner appealed to the CSC Regional
Office. Hence, the circumstances behind Petitioners dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level that Petitioner was informed of his alleged poor performance. There was no
evidence that Petitioner was furnished copies of 1) Mayor Bendaas letter, dated July 29, 2003, addressed to CSC Regional Office praying
that Petitioners termination be sustained; and 2) the performance evaluation report, dated July 29, 2003, prepared by Engr. Magsino and
Engr. Masongsong. The OSG claimed that Petitioner was denied due process because his dismissal took effect a day after he received the
notice of termination. No hearing was conducted to give Petitioner the opportunity to refute the alleged causes of his dismi ssal. The OSG
agreed with Petitioners claim that there was insufficient time for Mayor Bendaa to determine his fitness or unfitness for the position.*3+
[Emphasis supplied]



Thus, the fallo of the CA Decision[4] reads:

WHEREFORE, the petition is Granted. The Civil Service Commission Regional Office No. 4s Decision, dated July 20, 2004 is hereby Set Aside.
Accordingly, Petitioner is ORDERED REINSTATED with full payment of backwages and other monetary benefits. This case is hereby
REMANDED to the Civil Service Commission for reception of such evidence necessary for purposes of determining the amount of backwages
and other monetary benefits to which Petitioner is entitled.

SO ORDERED.





THE ISSUES

In this petition, the Civil Service Commission submits the following for our consideration:

I. The dropping of respondent from the rolls of the local government unit of Lemery, Batangas was in accord with Civil Servi ce Law, rules
and jurisprudence.

II. The respondent resorted to a wrong mode of appeal and violated the rule on exhaustion of administrative remedies and the corollary
doctrine of primary jurisdiction.

The principal issue, therefore, is whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

THE COURTS RULING

The Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnayes termination was in accord with the Civil Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus
Rules on Appointments and Other Personnel Actions which provides that:

Sec. 4. Nature of appointment. The nature of appointment shall be as follows:

a. Original refers to the initial entry into the career service of persons who meet all the requirements of the position. xxx







It is understood that the first six months of the service following an original appointment will be probationary in nature and the appointee
shall undergo a thorough character investigation. A probationer may be dropped from the service for unsatisfactory conduct or want of
capacity anytime before the expiration of the probationary period. Provided that such action is appealable to the Commission.

However, if no notice of termination for unsatisfactory conduct is given by the appointing authority to the employee before the expiration of
the six-month probationary period, the appointment automatically becomes permanent.



Under Civil Service rules, the first six months of service following a permanent appointment shall be probationary in nature, and the
probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the
probationary period. [5]

The CSC is of the position that a civil service employee does not enjoy security of tenure during his 6-month probationary period. It submits
that an employees security of tenure starts only after the probationary period. Specifically, it argued that an appointee under an original
appointment cannot lawfully invoke right to security of tenure until after the expiration of such period and provided that the appointee has
not been notified of the termination of service or found unsatisfactory conduct before the expiration of the same.*6+







The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) Article 13 of the Constitution guarantees the
rights of all workers not just in terms of self-organization, collective bargaining, peaceful concerted activities, the right to strike with
qualifications, humane conditions of work and a living wage but also to security of tenure, and Section 2(3), Article IX-B is emphatic in saying
that, "no officer or employee of the civil service shall be removed or suspended except for cause as provided by law."

Consistently, Section 46 (a) of the Civil Service Law provides that no officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law after due process.

Our Constitution, in using the expressions all workers and no officer or employee, puts no distinction between a probationary and a
permanent or regular employee which means that both probationary and permanent employees enjoy security of tenure. Probationary
employees enjoy security of tenure in the sense that during their probationary employment, they cannot be dismissed except for cause or for
failure to qualify as regular employees. This was clearly stressed in the case of Land Bank of the Philippines v. Rowena Paden,[7] where it
was written:

To put the case in its proper perspective, we begin with a discussion on the respondent's right to security of tenure. Articl e IX (B), Section 2(3)
of the 1987 Constitution expressly provides that






"[n]o officer or employee of the civil service shall be removed or suspended except for cause provided by law." At the outset, we emphasize
that the aforementioned constitutional provision does not distinguish between a regular employee and a probationary employee. In the
recent case of Daza v. Lugo[8] we ruled that:

The Constitution provides that "[N]o officer or employee of the civil service shall be removed or suspended except for cause provided by
law." Sec. 26, par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states:

All such persons (appointees who meet all the requirements of the position) must serve a probationary period of six months following their
original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer
may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period;
Provided, That such action is appealable to the Commission.

Thus, the services of respondent as a probationary employee may only be terminated for a just cause, that is, unsatisfactory conduct or want
of capacity. [Emphasis supplied]

x x x.

X x x the only difference between regular and probationary employees from the perspective of due process is that the latter's termination
can be based on the wider ground of failure to comply with standards made known to them when they became probationary employees.







The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and
the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the
officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended. [9]
Further, well-entrenched is the rule on security of tenure that such an appointment is i ssued and the moment the appointee assumes a
position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is
protected not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either
by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.[10]

While the CSC contends that a probationary employee does not enjoy security of tenure, its Omnibus Rules recognizes that such an employee
cannot be terminated except for cause. Note that in the Omnibus Rules it cited,[11] a decision or order dropping a probationer from the
service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period is appealable to the
Commission. This can only mean that a probationary employee cannot be fired at will.







Notably, jurisprudence has it that the right to security of tenure is unavailing in certain instances. In Orcullo Jr. v. Civil Service
Commission,[12] it was ruled that the right is not available to those employees whose appointments are contractual and co-terminous in
nature. Such employment is characterized by a tenure which is limited to a period specified by law, or that which is coterminous with the
appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was
made.*13+ In Amores M.D. v. Civil Service Commission,[14] it was held that a civil executive service appointee who meets all the
requirements for the position, except only the appropriate civil service eligibility, holds the office in a temporary capacity and is, thus, not
entitled to a security of tenure enjoyed by permanent appointees.

Clearly, Magnayes appointment is entirely different from those situations. From the records, his appointment was never classified as co-
terminous or contractual. Neither was his eligibility as a Utility Worker I challenged by anyone.

In support of its position that an appointee cannot lawfully invoke the right to a security of tenure during the probationary period, petitioner
CSC banked on the case of Lucero v. Court of Appeals and Philippine National Bank.[15] This case is, however, not applicable because it
refers to a private entity where the rules of employment are not exactly similar to those in the government service.



Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of
the Revised Administrative Code of 1987 states:

(1) Appointment through certification.An appointment through certification to a position in the civil service, except as herein otherwise
provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate
register of eligibles, and who meets all the other requirements of the position.

All such persons must serve a probationary period of six months following their original appointment and shall undergo a thorough
character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory
conduct or want of capacity any time before the expiration of the probationary period: Provided, That such action is appealable to the
Commission.



While unsatisfactory conduct and want of capacity are valid causes that may be invoked for dismissal from the service,[16] the CA observed
that the Memorandum issued by Mayor Bendaa terminating Magnayes employment did not specify the acts constituting his want of
capacity and unsatisfactory conduct. It merely stated that the character investigation conducted during his probationary period showed
that his employment need not be necessary to be permanent in status.*17+ Specifically, the notice of termination partly reads:





You are hereby notified that your service as Utility Worker I, this municipality under six (6) month probationary period, is considered
terminated for unsatisfactory conduct or want of capacity, effective August 14, 2001.

You are further notified that after a thorough character investigation made during your such probationary period under my administration,
your appointment for employment need not be necessary to be automatically permanent in status.[18]



This notice indisputably lacks the details of Magnayes unsatisfactory conduct or want of capacity. Section VI, 2.2(b) of the Omnibus
Guidelines on Appointments and other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by CSC
Memorandum Circular No. 12, Series of 1994), provides:

2.2. Unsatisfactory or Poor Performance

x x x

b. An official who, for one evaluation period, is rated poor in performance, may be dropped from the rolls after due notice. Due notice shall
mean that the officer or employee is informed in writing of the status of his performance not later than the fourth month of that rating
period with sufficient warning that failure to improve his performance within the remaining period of the semester shall warrant his
separation from the service. Such notice shall also contain sufficient information which shall enable the employee to prepare an
explanation. [Emphasis and underscoring supplied]









Magnaye asserts that no performance evaluation was made between March 2001 when he was hired by Mayor Rosales until August 14,
2001 when his services were terminated by Mayor Bendaa.[19] It was only on July 29, 2003, at Mayor Bendaas behest, that his two
supervisors prepared and submitted the evaluation report after the CSCRO-IV directed him to file an answer to Magnayes appeal.*20+

This has not been rebutted. It being not disputed, it was an error on the part of the CSCRO-IV to rely on such belated performance appraisal.
Common sense dictates that the evaluation report, submitted only in 2003, could not have been the basis for Magnayes termination.

Besides, Mayor Bendaas own assessment of Magnayes performance could not have served as a sufficient basis to dismiss him because
said mayor was not his immediate superior and did not have daily contacts with him. Additionally, Mayor Bendaa terminated hi s
employment less than one and one-half months after his assumption to office. This is clearly a short period within which to assess his
performance. In the case of Miranda v. Carreon,[21] it was stated:

The 1987 Constitution provides that no officer or employee of the civil service shall be removed or suspended except for cause provided by
law. Under the Revised Administrative Code of 1987, a government officer or employee may be removed from the service



on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not define and delineate the concepts of these
two grounds, however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds for dismissing a
government officer or employee from the service. Among these grounds are inefficiency and incompetence in the performance of official
duties. In the case at bar, respondents were dismissed on the ground of poor performance. Poor performance falls within the concept of
inefficiency and incompetence in the performance of official duties which, as earlier mentioned, are grounds for dismissing a government
official or employee from the service.

But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary period of six (6)
months for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires enough ti me on the
part of his immediate superior within which to observe his performance. This condition, however, was not observed in this case. x x x.
[Emphasis and underscoring supplied]

The CSC is the central personnel agency of the government exercising quasi-judicial functions.*22+ In cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which
a reasonable mind might accept as adequate to justify a conclusion.*23+ The standard of substantial evidence is satisfied when, on the
basis of the evidence on record, there is reasonable ground to believe that the person terminated was evidently wanting in capacity and had
unsatisfactory conduct. In this case, the evidence against Magnaye was woefully inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman Patricia Sto. Tomas[24] that the prohibition in Article IX (B) (2)
(3) of the Constitution against dismissal of a civil service officer or employee "except for cause provided by law" is a guaranty of both
procedural and substantive due process. Procedural due process requires that the dismissal comes only after notice and hearing,[25] while
substantive due process requires that the dismissal be for cause.*26+

Magnaye was denied procedural due process when he received his notice of termination only a day before he was dismissed from the
service. Evidently, he was effectively deprived of the opportunity to defend himself from the charge that he lacked the capacity to do his
work and that his conduct was unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not furnished with the submissions of
Mayor Bendaa that he could have opposed. He was also denied substantive due process because he was dismissed from the servi ce
without a valid cause for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct.

Thus, we reject petitioners argument that the CA erred when it acted upon the erroneous remedy availed of by respondent when he filed a
petition for review considering that the assailed decision is not in the nature of awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions as prescribed under Rule 43 of the Rules of Court. While
Sections 71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil




Service *27+ provide for the remedy of an appeal from decisions of its regional offices to the Commission proper, Magnayes petition to the
CA comes under the exceptions to the doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v. Lacap,[28] where
a violation of due process is listed to be among the noted exceptions to the rule. As discussed above, Magnayes dismissal was tainted with
irregularity because the notice given to him comes short of the notice contemplated by law and jurisprudence. The CA correctly exercised
jurisdiction over this case where standards of due process had been patently breached.

Having been illegally dismissed, Magnaye should be reinstated to his former position without loss of seniority and paid backwages and other
monetary benefits from the time of his dismissal up to the time of his reinstatement. In our decision in Civil Service Commission v.
Gentallan,[29] we ruled that for reasons of justice and fairness, an illegally dismissed government employee who is later ordered reinstated
is entitled to backwages and other monetary benefits from the time of his illegal dismissal until his reinstatement because he is considered
as not having left his office.



WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the Court of Appeals and its June 11, 2008 Resolution denying the
motion for reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.

SO ORDERED.

G.R. No. L-13932, De Los Santos et al. v. Yatco et al., 106 Phil. 745
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

December 24, 1959

G.R. No. L-13932
JOSE V. DE LOS SANTOS, ET AL., petitioners,
vs.
HON. NICASIO YATCO, ET AL., respondents.

Anacleto P. Bernardo for petitioners.
Talileo P. Brion for respondents.

BENGZON, J.:

Petition for certiorari to revoke the order of the respondent judge cancelling his previous order of execution. For the reasons stated
hereinafter, it should be denied.

It appears that in civil Case No. Q-2664 of Quezon City Court of First Instance, the parties submitted on December 9, 1957, a compromise
agreement whereby, referring to the sale by installment of a parcel of land made by plaintiffs Pacita V. De los Santos and Jose v. de los
Santos to defendant Francisco Mendoez, they asked the court to render a judgment subject t the following conditions:

a. On or before December 26, 1957, defendant shall pay to plaintiffs the amount of P1,000.00;

b. Defendant shall pay P300.00 monthly installment within the first five days of every month beginning January, 1958, until the balance shall
have been paid in full;

c. The balance shall bear interest at 10% per annum;

d. That balance of defendant to pay P1,000.00 on or before December 26, 1957 and/or any two (2) successive monthly installments shall be
cause for plaintiffs to demand of defendant to immediately vacate the premises with forfeiture in plaintiffs favor of all previous payments
made; that if defendant will refuse to voluntarily vacate, plaintiffs can ask for execution of judgment against the defendant;

e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of the lot, Lot No. 4, Block No. 13 T. C.T. No. 25094, Quezon City
Registry, in favor of defendant upon payment in full of the balance.

Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and saying "judgment is hereby rendered in
accordance with the terms and conditions set forth therein, for the parties to comply therewith."

On March 10, 1958, plaintiffs in the same case filed a motion for execution, because defendant had allegedly neglected to pay monthly
installments since January 1958. Plaintiffs set the motion for hearing on March 15, 1958. However, on March 14, 1958, defendants moved
(with the conformity of plaintiffs' counsel) for postponement to March 22, 1958 "to give the parties sufficient time to come to a more just,
fair and equitable agreement." (Annex "E") And the judge postponed, as requested.

It is not clear happened at the hearing on March 22, 1958. According to plaintiffs, Mendoez admitted he violated the agreement, asked for,
and was granted, two days to settle with plaintiffs, but he failed to do so. According to defendant there was a misunderstanding at the
hearing. The fact is, the court issued on March 25, 1958, an order of execution. However, defendant Mendoez filed on April 17, 1958, an
urgent motion to quash the writ of execution, asserting under oath that "immediately after the execution of the compromise agreement . . .
plaintiff Pacita V. de los Santos and defendant Francisco Mendoez entered into a verbal agreement whereby the former assured and led
defendant to believe that provided he could pay in full and at one time the balance of his indebtedness to her through a GSIS Government
Service Insurance System) loan which she is willing to facilitate for defendant, she would execute the necessary deed of absolute sale in favor
of the defendant for Lot No. 4, Block No. 13-C, Pcs-3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the terms and
conditions favorable to her in their compromise agreement unenforceable against defendant. . . ."

Defendant further alleged, also under oath, among other things, that he applied for and secured the necessary loan from the GSIS; that
plaintiffs had been so advised on March 28, 1958; but plaintiff Pacita V. de los Santos "arbitrarily and illegally demands and continuous
demanding of defendant that before she complies with the content of said (verbal) agreement, defendant should pay her P1,000.00 by way
of attorney's fees plus the balance of defendant's indebtedness computed by her in the amount of P14,363.00, excluding interest yet, all to
be taken from defendant's GSIS loan as approved, and that the P1,000.00 already paid by defendant to her as stated in paragraph 4, supra,
is considered by her forfeited in her favor. . . ."

This urgent motion was taken up on April 19, 1958. After listening to the parties, the judge in open court ordered; "in view of the statement
of counsel for plaintiffs that they are still open to an amicable settlement, action on the motion to quash writ of execution of the defendant
is held in abeyance for two (2) weeks during which period they can settle the case amicably and report to the Court whatever with
agreement they may have reached."

On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de los Santos on April 22, 1958, that he made
known to her "that he is ready to pay and is offering her the sum of P13,563, his balance indebtedness to her, in accordance with their verbal
agreement on December 9, 1957 . . . Plaintiff Pacita V. de los Santos brushed aside defendant's offer of payment, and instead, stated that
she will abide by their said agreement only if she will be paid P14,500.00. She added that she is demanding now, P14,500.00 after she has
forfeited the P1,000.00 already paid by defendant to her, and that she can not allow the P1,000.00 be deducted from the remai ning balance
of P14,563.00."

The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendant's insistance on non-violation of the compromises
agreement, he set the case for hearing on June 3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend
the hearing, and defendant proved the material allegations of his urgent motion as hereinabove set forth.

Wherefore, convinced that there was no justification or the issuance of the writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by his
order of June 4, 1958.

Hence this petition for certiorari to revoke that particular order, which petition must necessarily be based on lack of jurisdiction or abuse of
discretion.[[1]]

There is no question in this country that a judge has jurisdiction to quash a writ of execution issued by him, particularly where it was
improvidently issued. (Dimayuga vs. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See also Garcia vs. Muoz, 103 Phil., 628.

Was there abuse of discretion? We think not. In the first place, there being opposition on the part of the defendant, who alleged and proved
a subsequent verbal agreement amending the compromise, execution could not validly be decreed without a hearing. As we said i n Co. vs.
Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of the compromise agreement is alleged, "there
arises a cause of action which must be passed upon by the court requiring a hearing to determine whether such breach had really taken
place."[[2]]

In the second place, the allegations proved by Mendoez about their verbal agreement, his having secured a loan from the GSIS and his
consequent ability to discharge his obligation seemingly justified the court's refusal to eject defendant from the premises (on execution) was
the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by defendant as previous installments of the
purchase price,[[3]] not to mention the of defendants use of the house and theatre erected that parcel of land. Upon the other hand, the
respondent judge's action caused no irreparable or undue harm plaintiffs, because the latter still have the judgment Mendoez. Note
particularly that their unpaid continuous to earn 10% interest.

Wherefore, as the court had jurisdiction and has committed not grave abuse of discretion, the writ of certiorari may not be i ssued.

Petition denied, with costs against petitioners.

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, Barrera and Gutierrez David, JJ., concur.

G.R. No. 126183 March 25, 1999
LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO,
and EMERITA PIZARRO, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, respondents.
G.R. No. 129221 March 25, 1999
ROLANDO ALURA,CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, LEA
POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO,
SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA CORRALES,
GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA,
LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCENILA, CORAZON GONZALES, VIOLETA
GUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESTTA LAURENTE,
CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA
MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA
PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE
SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO,
ROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE
PARMISANO, FELIPE ALACAR, JOSE FETAL ALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA
CLEMENCIA, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents.

BELLOSILLO, J.:
These consolidated petitions
1
are among several petitions filed with this Court arising from the much-publicized public school teachers'
mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended,
and eventually dismissed in October 1990 by then Secretary Isidro D. Cario of the Department of Education, Culture and Sports (DECS), in
decisions issued by him which uniformly read
This is a mutu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports against
the following public school teachers . . . . based on the report submitted by their respective school principals wherein it
was alleged that the above-named teachers participated in the mass action/illegal strike in Sept. 19-21, 1990 and
subsequently defied the return-to-work order dated September 17, 1990 issued by this Office, which acts constitute grave
misconduct, gross neglect of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable office
regulations, refusal to perform official duty, gross insubordination conduct prejudicial to the best interest of the service
and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as the Civil Service
Decree of the Philippines.
Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint,
respondents failed to submit the required answer within the given time up to the present, and despite the denial of their
request for extension of 30 days within which to submit their answers dated September 25, 1990 filed by their counsel,
Atty. Gregorio Fabros, in a letter of this Office to him dated Septmber 28, 1990, respondents failed to submit the same,
which failure, is considered a waiver on their part of their right to answer the charges and to controvert the same.
Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.
In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the Application of
Penalty in Administrative Cases, the herein respondents are dismissed from Office effective immediately.
The decisions dismissing petitioners were immediately implemented.
Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC found
petitioners guilty of "conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon
them the reduced penalty of six (6) months' suspension. However, in view of the length of time that petitioners had been out of the service
by reason of the immediate implementation of the dismissal orders of Secretary Cario, the CSC likewise ordered petitioners' automatic
reinstatement in the service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. Nos.
111998,
2
114435-5506,
3
and 116312-19,
4
which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No.
1-95
5
and there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals
6
rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismissing
the petitions for lack of merit.
7
The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners
guilty of conduct prejudicial to the best interest of the service were based on reasonable and justifiable grounds; that petitioners' perceived
grievances were no excuse for them not to conduct classes and defy the return-to-work order issued by their superiors; that the immediate
execution of the dismissal orders of Secretary Cario was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292)
as well as Sec. 37, par. (b), Art. IX of PD No. 807,
8
and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E. O. No. 292. Their
motion for reconsideration having been denied on 15 May 1997,
9
petitioners then appealed by certiorari to this Court on 26 June 1997,
docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of
Appeals
10
rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit.
11
The
appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1990
mass actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals cited Manila
Public School Teachers Association v. Laguio, Jr.
12
wherein this Court ruled that the public school teachers' mass actions of
September/October 1990 were "to all intents and purposes a strike . . . constitut[ing] a concealed and unauthorized stoppage of, or
absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention.that
secretary Cario's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or
failure to refute the factual finding that petitioners actually joined the mass actions based on the report of absences submi tted by their
respective school principals. Their motion for reconsideration having been denied in the resolution of 20 August 1996,
13
petitioners then
filed a petition for review on certiorari with this Court on 1 October 1996, docketed as G.R. No. 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as they did
common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to
the best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the
government for redress of their grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not
"strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of back wages
for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC,
deducting the period of six (6) months' suspension eventually meted them.
The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very
desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will
adhere to that principle and apply it to all future cases where the facts are substantially the same.
14
Stare decisis et non quieta movere.
Stand by the decisions and disturb not what is settled.
15

As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v.
Laguio Jr.,
16
and Alliance of Concerned Teachers v. Hon. Isidro Cario
17
that the mass actions of September/October 1990 staged by Metro
Manila public school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized
stoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons to
protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial
implementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fringe
benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching hours."
In Rolando Gan v. Civil Service Commission,
18
we denied the claim that the teachers were thereby denied their rights to peaceably assemble
and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be
exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass
actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best
interest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they
had been ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays to dramatize their
grievances and to dialogue with the proper authorities within the bounds of law, no one not the DECS, the CSC or even the Supreme
Court could have held them liable for their participation in the mass actions.
19

With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc.,
20
invoked by petitioners, we have likewise
already ruled in the Rolando Gan case
21
that the PBM ruling that the rights of free expression and assembly could not be lightly
disregarded as they occupy a preferred position in the hierarchy of civil liberties was not applicable to defend the validity of the 1990
mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property rights while the
higher consideration involved in the case of the striking teachers was the education of the youth which must, at the very least, be equated
with the freedom of assembly and to petition the government for redress of grievances.
22

We affirmed the foregoing rulings in Bagana v. Court of Appeals
23
by denying a similar petition filed by another group of teachers who
participated in the 1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly. We held
in Bagana that the Court of Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct
prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court of
Appeals
24
we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" did not
erase the true nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable response to
the teachers' economic grievances. We again stressed that the teachers were penalized not because they exercised their right to peaceably
assemble but because of the manner by which such right was exercised, i.e., going on unauthorized and unilateral absences thus disrupting
classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers were
responsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately
appointed by Secretary Cario. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for review,
the fact that the prompt remedial action taken by Secretary Cario might have partially deflected the adverse effects of the mass protests
did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason why such prompt
remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty
of conduct prejudicial to the best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when
they were not allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cario
while awaiting resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary
Cario were commuted by the CSC to six (6) months' suspension is already settled.
In Bangalisan v. Court of Appeals
25
we resolved the issue in the negative on the ground that the teachers were neither exonerated nor
unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. Like herein
petitioners, those in Bangalisan were also teachers who participated in the 1990 mass actions for which they were dismissed by Secretary
Cario but ordered merely suspended for six (6) months by the Civil Service Commission. On a plea that the immediate implementation of
the dismissal orders of Secretary Cario was unjustified, thus warranting an award of back wages the Court said
As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47,
paragraph (2), of Executive Order No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces,
cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for
not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau
or office is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case
the same shall be executory only after confirmation by the Secretary concerned.
And since it was already the final dismissal orders of Secretary Cario which were being carried out, immediate implementation
even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987.
26
Hence, being
legal, the immediate execution of the dismissal orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of Baguio
27
andBautista v. Peralta
28
being
cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to
the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to have
been exonerated from the charges levelled against them by Secretary Cario from the mere fact that they were found guilty only of
conduct prejudicial to the best interest of the service by the CSC. It must be remembered that Secretary Cario charged petitioners with
grave misconduct, gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for having participated in the 1990
illegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed participated in the mass the factual
finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best i nterest of the
service. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. Having been found
to have actually participated in the illegal mass actions although found answerable for a lesser offense, petitioners could not be considered
as fully innocent of the charges against them.
29
Being found liable for a lesser offense is not equivalent to exoneration.
30

Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass
actions but granted the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of his
grandmother. In Jacinto v. Court of Appeals
31
we again denied the claim for back wages of teachers found to have given cause for their
suspension i.e., their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto who
was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause for their supension,
their prayer for backwages must be denied conformably with settled rulings of this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are
AFFIRMED. No costs.
SO ORDERED.
LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO S. VILLARUBIA, RICARDO M. GONZALES, JR.,
ROSSEL MARIE
G. GUTIERREZ, NICANOR F. VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ, ANTOLIN D. ZAMAR,
JR., MARIO S. ALILING, TEODULO SALVORO, JR., PHILIP JANSON ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN RYAN
PATULA, WILLIAM TANOY, VICTOR ARBAS, JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A. RENDOQUE, ENRIQUETA
TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS, MARIO T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLAROSA,
RICARDO C. PATULA, RACHEL BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO CUAL, BERNARD J. OZOA, ROGER JOHN AROMIN,
CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA LEE ESTRABELA, MELCHOR B. MAQUILING, RAUL
MOLAS, OSCAR KINIKITO, DARWIN B. CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO, RODULFO
ZOSA, JR. and JORGE ARBOLADO,
Petitioners,

- versus -

CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR DUMALAG, JR., ERLINDA TUMONGHA, JOSEPHINE
MAE FLORES AND ARACELI CAMPOS,
Respondents.

G.R. No. 181559












Present:

PUNO, C.J.,
QUISUMBING,*
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,**
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ.





















Promulgated:
October 2, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


DEL CASTILLO, J.:

The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned demagoguery of elections.
Amidst the struggle of personalities, ideologies, and platforms, the vigor and resilience of a professional civil service can only be preserved
where our laws ensure that partisanship plays no part in the appointing process. Consequently, we affirm the validity of a regulation issued
by the Civil Service Commission (CSC or the Commission) intended to ensure that appointments and promotions in the civil service are made
solely on the basis of qualifications, instead of political loyalties or patronage.

This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision[1] of the Court of Appeals
dated August 28, 2007 and its Resolution[2] dated January 11, 2008 in CA-G.R. CEB-SP No. 00665. The case stemmed from CSC Field Offices
invalidation of petitioners appointments as employees of the City of Dumaguete, which was affirmed by the CSC Regional Office, by the
Commission en banc and by the Court of Appeals.

LEGAL AND FACTUAL BACKGROUNDS

Accreditation of Dumaguete City by the Civil Service Commission

On October 25, 1999, pursuant to the Commissions Accreditation Program, the CSC issued Resolution No. 992411,*3+ which granted
the City Government of Dumaguete the authority to take final action on all its appointments, subject to, inter alia, the following conditions:

1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within the limits and restrictions of the
implementing guidelines of the CSC Accreditation Program as amended (MC No. 27, s. 1994);

x x x x

5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service Field Office] CSFO concerned;

x x x x

9. That appointments found in the course of monthly monitoring to have been issued and acted upon in violation of pertinent rules,
standards, and regulations shall immediately be invalidated by the Civil Service Regional Office (CSRO), upon recommendation by the CSFO.

Appointments made by outgoing Mayor Remollo

Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost to respondent Mayor
Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor Remollo promoted 15 city hall employees, and regularized
another 74 city hall employees, including the herein 52 petitioners.

On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he would not
honor the appointments made by former Mayor Remollo. On the same day, he instructed the City Administrator, respondent Dominador
Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C. Tumongha (now deceased), to refrain from making any cash
disbursements for payments of petitioners' salary differentials based on their new positions.

The Petition for Mandamus before the Regional Trial Court of Dumaguete City

Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Temporary
Restraining Order against the City of Dumaguete, represented by respondent city mayor Perdices and city officers Dumalag, Tumongha,
Josephine Mae Flores, and Araceli Campos. The petition was docketed as Civil Case No. 13013, and raffled to Branch 41 of the Regional Trial
Court of Dumaguete City. Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taki ng any action or
issuing any orders nullifying their appointments.

In a Decision*4+ dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners Motion for Reconsiderati on was also
denied in an Order[5] dated April 26, 2007. The issues involved in Civil Case No. 13013 have twice been elevated to and eventually resolved
by the Court in G.R. Nos. 177795[6] and 168484.[7]

Revocation of Appointments by the Civil Service Commission Field Office

Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked and
invalidated the appointments of the petitioners (the August 1, 2001 Order) based of the following findings:

1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in the submitted [Report of
Personnel Actions] ROPA for the month of June 2001.

2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June 2001 to consider the number of
appointments thus issued and there was no other call for a PSB meeting certified to by the City [Human Resource Management Of ficer]
HRMO.

3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in the ROPA as certified by the City
HRMO.

4. There were no PSB statements certifying that there was actual screening and evaluation done on all candidates for each position.

5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May 2001 elections for City Mayor of
Dumaguete City.

6. The 89 appointments were all issued after the elections and when the new city mayor was about to assume office.[8]

Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988 dated June 4, 2001,
the pertinent portions of which provide:

WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates controversies that would
arise involving appointments issued by outgoing local chief executives immediately before or after the elections;

WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appoi ntments even after the
elections, especially when their successors have already been proclaimed.

WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing and incoming officials and
the people who are immediately affected and are made to suffer the consequences thereof are the ordinary civil servants, and eventually, to
a large extent, their constituents themselves;

WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees during the prohibited peri od as
provided for in CSC Memorandum Circular No. 7, series of 2001, is to prevent the occurrence of the foregoing, among others;[9]

WHEREAS, local elective officials whose terms of office are about to expire, are deemed as caretaker administrators who are duty
bound to prepare for the smooth and orderly transfer of power and authority to the incoming local chief executives;

WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited from making appoi ntments
two (2) months immediately before the next presidential elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public safety;

WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160) or in the Civil Service Law
(Book V of Executive Order No. 292) of the abovestated prohibition, the rationale against the prohibition on the issuance of midnight
appointments by the President is applicable to appointments extended by outgoing local chief executives immediately before and/or after
the elections;

x x x x

NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the government,
hereby issues and adopts the following guidelines:

x x x x

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except in cases of renewal and
reinstatement, regardless of status, which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by
the Commission, including its Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case may be,
shall be disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the
issuance of appointments as shown by the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the elections.

4. The term mass appointments refers to those issued in bulk or in large number after the elections by an outgoing local chief executive
and there is no apparent need for their immediate issuance.

On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before the CSC Region VII Office in
Cebu. The motion was, however, denied on the ground that it should have been filed before the office of Director Abucejo in Dumaguete
City. Thereafter, on October 31, 2001, petitioners asked the CSC Region VII Office in Cebu to treat their previous Motion for Reconsideration
as their appeal.

On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an Appeal to the Commission en
banc was filed through registered mail by 52 of the original 89 appointees, the petitioners herein, namely:


Name

Former Position

New Position
Date of Appointment
1. Leah M. Nazareno
Legal Researcher
Asst. Dept. Head I
7-Jun-01
2. Carlo M. Cual
Legislative Staff Officer I
Legislative Staff Officer III
5-Jun-01
3. Rogelio B. Clamonte
Public Services
Supply Officer IV
5-Jun-01
4. Florecita Llosa
Supply Officer I
Records Officer II
11-Jun-01
5. Rogelio S. Villarubia
Agriculturist II
Agriculturist III
5-Jun-01
6. Rossel Marie G. Gutierrez
Casual/Plantilla
Supervising Environmental Management Specialist
5-Jun-01
7. Nicanor F. Villarosa, Jr.
Casual/Plantilla
Dentist II
5-Jun-01
8. Marie Sue Cual
Casual/Plantilla
Social Welfare Officer I
7-Jun-01
9. Miramichi Majella B. Mariot
Casual/Plantilla
Records Officer II
7-Jun-01
10. Alma F. Ramirez
Casual/Plantilla
Clerk IV
7-Jun-01
11. Antolin D. Zamar, Jr.
Casual/Plantilla
Metro Aide II
11-Jun-01
12. Mario S. Aliling
Casual/Plantilla
Driver II
5-Jun-01
13. Teodulo Salvoro, Jr.
Casual/Plantilla
Metro Aide II
5-Jun-01
14. Philip Janson Altamarino
Casual/Plantilla
Clerk I
5-Jun-01
15. Antonieta Padura
Casual/Plantilla
Metro Aide II
11-Jun-01
16. Adolfo Cornelia
Casual/Plantilla
Metro Aide II
11-Jun-01
17. Ian Ryan Patula
Casual/Plantilla
Metro Aide II
7-Jun-01
18. William Tanoy
Casual/Plantilla
Metro Aide II
5-Jun-01
19. Victor Arbas
Casual/Plantilla
Public Services Foreman
7-Jun-01
20. Jeanith Cual
Casual/Plantilla
Utility Worker II
5-Jun-01
21. Braulio Sayson
Casual/Plantilla
Mechanical Plant Supervisor
7-Jun-01
22. Dawn Villarosa
Casual/Plantilla
Clerk I
7-Jun-01
23. Agustin Rendoque
Casual/Plantilla
Utility Worker I
7-Jun-01
24. Enriqueta Tumongha
Casual/Plantilla
Utility Worker II
5-Jun-01
25. Lionel Banogon
Casual/Plantilla
Clerk II
5-Jun-01
26. Rosalito Vergantinos
Casual/Plantilla
Pest Control Worker II
5-Jun-01
27. Mario Cual, Jr.
Casual/Plantilla
Utility Foreman
7-Jun-01
28. Elaine Tumongha
Casual/Plantilla
Registration Officer I
11-Jun-01
29. Norman Villarosa
Casual/Plantilla
Utility Worker I
5-Jun-01
30. Ricardo C. Patula
Casual/Plantilla
Revenue Collection Clerk I
5-Jun-01
31. Rachel Banagua
Casual/Plantilla
Utility Worker I
5-Jun-01
32. Rodolfo Calugcugan
Job Order
Driver I
7-Jun-01
33. Pergentino Cual
Job Order
Metro Aide II
11-Jun-01
34. Bernard Ozoa
Job Order
Utility Worker I
7-Jun-01
35. Roger J. Aromin
Job Order
Utility Worker I
7-Jun-01
36. Cheryl Nocete
Job Order
Utility Worker I
11-Jun-01
37. Marivic Sanchez
Job Order
Utility Worker I
11-Jun-01
38. Crispin Duran
Job Order
Metro Aide II
11-Jun-01
39. Rebeco Lingcong
Job Order
Metro Aide II
5-Jun-01
40. Anna Lee Estrabela
Job Order
Cash Clerk III
5-Jun-01
41. Melchor Maquiling
Job Order
Engineer I
7-Jun-01
42. Raul Molas
Job Order
Construction and Maintenance Foreman
7-Jun-01
43. Oscar Kinikito
Job Order
Electrician II
7-Jun-01
44. Darwin Conejos
Job Order
Engineering Aide
7-Jun-01
45. Romel Cual
Job Order
Metro Aide II
11-Jun-01
46. Roqueta Amor
Job Order
Dental Aide
5-Jun-01
47. Diosdado Lajato
Job Order
Pest Control Worker II
5-Jun-01
48. Paul Pino
Job Order
Utility Worker II
5-Jun-01
49. Lito Piero
Job Order
Metro Aide II
11-Jun-01
50. Rodulfo Zosa, Jr.
Job Order
Metro Aide II
11-Jun-01
51. Jorge Arbolado
Job Order
Traffic Aide I
5-Jun-01
52. Ricardo M. Gonzales, Jr.
OIC-General Services Officer
Asst. Dept. Head I
5-Jun-01

Ruling of the CSC en banc and the Court of Appeals

On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and affirming the invalidation of their
appointments on the ground that these were mass appointments made by an outgoing local chief executive.[10] The Commission explained:

The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The prohibition is designed to
discourage losing candidates from extending appointments to their protgs or from giving their constituents promised positions (CSC
Resolution No. 97-0317 dated January 17, 1997, Re: Roldan B. Casinillo). Moreover, the same is intended to prevent the outgoing local chief
executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any means that would
directly or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed, particularly when the
appointments were issued by the appointing authority who lost in said election.

Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005, through CSC Resolution No.
050473.

Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEB-SP No. 00665. On August
28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No.
050473 dated April 11, 2005, ratiocinating that:

The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the nefarious practice by outgoing
local chief executives in making appointments before, during, and/or after the regular local elections for ulterior partisan motives. Said
practice being analogous to midnight appointments by the President or Acting President, the CSC then promulgated Resolution No.
010988, to suppress the mischief and evils attributed to mass appointments made by local chief executives.

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January 11, 2008.

THE PARTIES ARGUMENTS

Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to issue
regulations prohibiting mass appointments at the local government level. Petitioners cite De Rama v. Court of Appeals[11] which held that
Section 15, Article VII of the Constitution is only applicable to the President or Acting President. They claim that outgoing or defeated local
appointing authorities are authorized to make appointments of qualified individuals until their last day in office, and that not all mass
appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to take final action on all
appointments, the Commission did not have any authority to disapprove the appointments made by outgoing mayor Remollo.
In their Comment dated May 15, 2008,*12+ respondents argue that petitioners appointments violated civil service rules and regulations
other than CSC Resolution No. 010988. Respondents also assert that the Commission is authorized to invalidate the petitioners
appointments, because the CSC accreditation program carried with it the caveat that said exercise of authority shall be subj ect to Civil
Service law, rules and regulations. Finally, respondents claim that petitioners were guilty of forum shopping because the issues in this case
and in G.R. No. 177795 are the same.

OUR RULING

We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that the invalidation of petitioners
appointments was warranted. Consequently, we affirm the Decision of the Court of Appeals dated August 28, 2007 and its Resol ution dated
January 11, 2008 in CA-G.R. CEB-SP No. 00665.

The CSC has the authority to establish rules to promote efficiency in the civil service

The Commission, as the central personnel agency of the government,[13] has statutory authority to establish rules and regulations to
promote efficiency and professionalism in the civil service. Presidential Decree No. 807,[14] or the Civil Service Decree of the Philippines,
provides for the powers of the Commission, including the power to issue rules and regulations and to review appointments:

Section 9: Powers and functions of the Commission The Commission shall administer the Civil Service and shall have the following
powers and functions:

x x x x

(b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of this Decree x x x

(c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient,
and effective personnel administration in the government;

x x x x

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees,
members of the armed forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not
possess the appropriate eligibility or required qualifications; (Emphasis supplied)

Executive Order No. 292, or the Administrative Code of 1987, also provides:

Section 12: Powers and Functions The Commission shall have the following powers and functions:

x x x x

(2) prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other
pertinent laws;

(3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient,
and effective personnel administration in the government;

(4) take appropriate action on all appointments and other personnel matters in the Civil Service including extension of Service beyond
retirement age;

(5) inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government units, and
other instrumentalities of the government, including government owned and controlled corporations. (emphasis supplied)
Clearly, the above-cited statutory provisions authorize the Commission to prescribe, amend, and enforce rules to cover the civil
service. The legislative standards to be observed and respected in the exercise of such delegated authority are set out in the statutes, to wit:
to promote economical, efficient, and effective personnel administration.

The Reasons behind CSC Resolution No. 010988

We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true that there is no
constitutional prohibition against the issuance of mass appointments by defeated local government officials prior to the expiration of their
terms. Clearly, this is not the same as a midnight appointment, proscribed by the Constitution, which refers to those appointments made
within two months immediately prior to the next presidential election.[15] As we ruled in De Rama v. Court of Appeals:[16]

The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents
before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII,
Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments.
In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.

However, even while affirming De Rama, we explained in Quirog v. Aumentado,[17] that:

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against
midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is
precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby
depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. (Emphasis
supplied)

Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No. 010988. However, we found that
Quirogs appointment was made on June 1, 2001, or three days prior to the issuance of CSC Resolution No. 010988. As such, we ruled that
the retroactive application of the law was not warranted.

In Sales v. Carreon, Jr.,[18] we had occasion to discuss the reasons behind the prohibition by the Commission of mass appointments
after the elections. Sales involved the issuance of 83 appointments made by then Dapitan City Mayor Joseph Cedrick O. Ruiz in his last
month of office (on June 1, 18, and 27, 2001), which the newly elected Mayor, Rodolfo H. Carreon, subsequently revoked, on the ground that
these violated CSC Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing
appointments in the civil service during the election period. In Sales, we declared:

This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, especially after their
successors have been proclaimed. It does not only cause animosities between the outgoing and the incoming officials, but also affects
efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending
to their functions.[19]

It is not difficult to see the reasons behind the prohibition on appointments before and after the elections. Appointments are banned
prior to the elections to ensure that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from
gaining any undue advantage during the elections. To this end, appointments within a certain period of time are proscribed by the Omnibus
Election Code and related issuances.[20] After the elections, appointments by defeated candidates are prohibited, except under the
circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the
incoming administration a free hand in implementing its policies, and to ensure that appointments and promotions are not used as a tool for
political patronage or as a reward for services rendered to the outgoing local officials.

Not all Mass Appointments are Prohibited

Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No. 010988 does not purport to
nullify all mass appointments. However, it must be shown that the appointments have undergone the regular screening process, that the
appointee is qualified, that there is a need to fill up the vacancy immediately, and that the appointments are not in bulk. In Nazareno v.
Dumaguete,[21] we explained:

CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any appointments immediately before and
after elections. The same Resolution provides that the validity of an appointment issued immediately before and after elections by an
outgoing local chief executive is to be determined on the basis of the nature, character, and merit of the individual appoint ment and the
particular circumstances surrounding the same.

Corollarily, we held in Sales,[22] that:

x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the individual appointment and t he
circumstances surrounding the same. It is only when the appointments were made en masse by the outgoing administration and shown to
have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety that this Court has
struck down "midnight" appointments.

In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate dates, but within a ten-day
period, in the same month that he left office.*23+ Further, the Commissions audit found violations of CSC rules and regulati ons that justified
the disapproval of the appointments. In this regard, CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on
Appointments and Other Personnel Actions, provides:

Section 1 Appointments submitted to the CSC office concerned should meet the requirements listed hereunder. Non-compliance with
such requirements shall be grounds for disapproval of said appointments:

x x x x

(h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by the PSB, if applicable. As
proof thereof, a certification signed by the Chairman of the Board at the back of the appointment or alternatively, a copy of the
proceedings/ minutes of the Boards deliberation shall be submitted together with the appointment. The i ssuance of the appointment shall
not be earlier than the date of the final screening/deliberation of the PSB.
Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence that there were any
deliberations on the qualifications of the petitioners, or any indication that there was an urgent need for the immediate issuance of such
appointments. The absence of evidence showing careful consideration of the merits of each appointment, and the timing and the number of
appointments, militate against petitioners cause. On the contrary, the prevailing circumstances in this case indicate that the appointments
were hurriedly issued by the outgoing administration.

The Accreditation of Dumaguete City did not remove the CSCs authority to review appointments

We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to take final action on all its
appointments did not deprive the Commission of its authority and duty to review appointments. Indeed, Resolution No. 992411 states that
such exercise of authority shall be subject to civil service law, rules and regulations and that appointments in violation of pertinent rules
shall immediately be invalidated.

Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides that notwithstandi ng the
initial approval of an appointment, the same may be recalled for *v+iolation of other existing Civil Service laws, rules and regulations. The
CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power includes the authority
to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations.*24+
Petitioners have not engaged in forum shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a favorable judgment.[25] Forum-shopping has been defined as the act of a
party against whom an adverse judgment has been rendered in one forum, seeking and possibly getting a favorable opinion in another
forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable disposition.[26]

Although the factual antecedents of the cases brought before this Court are the same, they involve different issues. The petition for
Mandamus with Injunction and Damages, docketed as Civil Case No. 13013, and raised before this Court as G.R. No. 177795, challenged
respondents refusal to recognize petitioners appointments and to pay petitioners salaries, salary adjustments, and other emoluments. The
petition only entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present case docketed as
G.R. No. 181559, on the other hand, involves the merits of petitioners appeal from the invalidation and revocation of their appointments by
the CSC-Field Office, which was affirmed by the CSC-Regional Office, CSC en banc, and the Court of Appeals.

In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which found petitioners not guilty
of forum shopping, to wit:
True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are not necessarily the same for
this Court to adjudge that the filing of both by petitioners constitutes forum shopping. In G.R. No. 181559, the Court will resolve whether or
not the petitioners appointments are valid. *In G.R. No. 177795+, petitioners are claiming a right to the salaries, salary adjustments and
other emoluments during the pendency of the administrative cases, regardless of how the CSC decided the validity of their appointments.

WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals Decision in CA-G.R. CEB-SP No. 00665 dated August 28,
2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, and its Resolution
dated January 11, 2008 denying the Motion for Reconsideration are AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES,
Petitioner,



- versus -



THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO,
Respondents.
G.R. No. 164185

Present:

QUISUMBING, J., Chairperson,
YNARES-SANTIAGO,*
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

Promulgated:

July 23, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails the May 20, 2004
Decision[1] of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos
Demurrer to Evidence[2] and acquitting him of the crime of unlawful appointment under Article 244[3] of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now deceased), a
relative of Villapandos wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July 1,
1998, Villapando designated Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.[4] A Contract of Consultancy[5]
dated February 8, 1999 was executed between the Municipality of San Vicente, Palawan and Tiape whereby the former employed the
services of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor for a period of six
months from January 1, 1999 to June 30, 1999 for a monthly salary of P26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of Article 244 of the Revised
Penal Code before the Office of the Deputy Ombudsman for Luzon.[6] The complaint was resolved against Villapando and Tiape and the
following Information[7] dated March 19, 2002 charging the two with violation of Article 244 of the Revised Penal Code was fi led with the
Sandiganbayan:
x x x x
That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the Municipal Mayor of San
Vicente, Palawan, committing the crime herein charged, in relation to and taking advantage of his official functions, conspiring and
confederating with accused Orlando M. Tiape, did then and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a
Municipal Administrator of San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the
qualification as he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 el ections, hence
is ineligible for appointment to a public office within one year (1) from the date of the elections, to the damage and prejudi ce of the
government and of public interest.
CONTRARY TO LAW.[8]
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was dismissed after the
prosecution proved his death which occurred on July 26, 2000.[9]
After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The Sandiganbayan, Fourth Division denied
his motion but gave him five days within which to inform the court in writing whether he will nonetheless submit his Demurrer to Evidence
for resolution without leave of court.[10] Villapando then filed a Manifestation of Intent to File Demurrer to Evidence,[11] and was given 15
days from receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to Evidence meritorious, as follows:
The Court found the Demurrer to Evidence impressed with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.Any public officer who shall knowingly nominate or appoint to any public office any person lacking the
legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made the nomination or
appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time of [his] designation as
Municipal Administrator, was lacking in legal qualification. Stated differently, does legal qualification contemplate the one (1) year
prohibition on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating
that a candidate who lost in any election shall not, within one year after such election, be appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public office, there must be a law providing for the qualifications of a
person to be nominated or appointed therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that the
qualification of a public officer to hold a particular position in the government is provided for by law, which may refer to educational
attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office. The person
nominated or appointed is not qualified and his lack of qualification is known to the party making the nomination or appointment. The
qualification of a public officer to hold a particular position in the government is provided by law. The purpose of the law is to ensure that
the person appointed is competent to perform the duties of the office, thereby promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For instance, for one to be
appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a person for appointment as judge knowing him to be
not a member of the Philippine Bar, such act constitutes a violation of the law under consideration.
In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that provides for the legal
qualification for the position of municipal administrator is Section 480, Article X of the Local Government Code, to wit:
Section 480. Qualifications, Terms, Powers and Duties.(a) No person shall be appointed administrator unless he is a citizen of the
Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public
administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its
equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the
provincial or city administrator, and three (3) years in the case of the municipal administrator.
xxx xxx xxx.
It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapandos appointee, Orlando Ti ape, lacked
any of the qualifications imposed by law on the position of Municipal Administrator. Prosecutions argument rested on the assertion that
since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal qualifications.
It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who possessed the
required legal qualifications for a position may be temporarily disqualified for appointment to a public position by reason of the one year
prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified for appointment, but could not be
appointed as he lacked any or all of the required legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the Demurrer to Evidence filed by Mayor Villapando with merit, the same is hereby GRANTED. Mayor Villapando is
hereby ACQUITTED of the crime charged.
SO ORDERED.[13]
Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People of the
Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do so and in a
Resolution[14] dated June 7, 2006, this Court informed him that he is deemed to have waived the filing of his comment and the case shall be
resolved on the basis of the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE LEGAL DISQUALIFICATION IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR
PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.[15]
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack or excess of
jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounti ng to lack or excess of jurisdiction
because its interpretation of Article 244 of the Revised Penal Code does not complement the provision on the one-year prohibition found in
the 1987 Constitution and the Local Government Code, particularly Section 6, Article IX of the 1987 Constitution which states no candidate
who has lost in any election shall, within one year after such election, be appointed to any office in the government or any government-
owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states that
except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year after such election, be
appointed to any office in the government or any government-owned or controlled corporation or in any of their subsidiaries. Petitioner
argues that the court erred when it ruled that temporary prohibition is not synonymous with the absence of lack of legal qual ification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that one who
possesses the required legal qualification for a position may be temporarily disqualified for appointment to a public position by reason of the
one-year prohibition imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal Code shoul d a person
suffering from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in the law.
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised
Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local
Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any office in the government or
any government-owned or controlled corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public office any person lacking the
legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective or appointive local
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 elective or appointive local 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.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be
appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office i n the Government
or any Government-owned or controlled corporations or in any of their subsidiaries.
Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal disqualification lack cogency. Article 244
of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot be read as excluding temporary disqualification in
order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local
Government Code of 1991.
Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants the demurrer to evidence, such order amounts
to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy, this Court held
in the same case that such ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion.
Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner
by reason of passion and hostility.[17]
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of discretion.
Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal disqualification cannot
be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under the 1987 Constituti on and the
Local Government Code of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in
statutory construction that where the law does not distinguish, the courts should not distinguish. There should be no distinction in the
application of a law where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to Evidence yet accommodated
Villapando by giving him five days within which to inform it in writing whether he will submit his demurrer to evidence for resolution without
leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation and, thus,
cannot be the source of an acquittal.[18]
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of statutory construction
resulting in its decision granting Villapandos Demurrer to Evidence and acquitting the latter, we can do no less but declare its decision null
and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465,
granting private respondent Alejandro A. Villapandos Demurrer to Evidence and acquitting him of the crime of unlawful appointment under
Article 244 of the Revised Penal Code is hereby declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan,
Fourth Division, for further proceedings.
SO ORDERED.
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, petitioner,
vs.
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.

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 (SBMA), 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 oficio 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 the 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 officer 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:
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 . . . .
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:
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.
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 responsibil ity, which
may result in haphazardness and inefficiency . . . ."
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 par., 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.
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-cut 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 the government post, 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 then 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.
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 i f 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."
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]ppointment 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:
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 . . . .
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 carri es 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 di scretion 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.
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:
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.
25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.
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 i s 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 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 val id 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 vs.
Carroll, 38 Conn., 499; Wilcox vs. 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 know 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.
Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ., concur.
Padilla, J., is on leave.
[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.
D E C I S I O N
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 petitioners 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
MMDAs organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exerci se 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 (1) months 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 (1) 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 petitioners 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 separati on/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 petitioners
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 petitioners 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 petitioners appeal from the opinion of Director Acebedo. It ratiocinated as follows:

There is no specific rule of law which applies to petitioners case. Nevertheless, the Court finds it equitable to deny his claim for payment of
separation pay at the rate of one and one-fourth (1) months 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
(Govt. 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 petitioners 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 petitioners 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 second retirement, 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. 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
petitioners, 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 petitioners 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 (1)
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.

G.R. No. 169637 June 8, 2007
BENGUET STATE UNIVERSITY represented by its President ROGELIO D. COLTING, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
D E C I S I O N
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari filed by petitioner Benguet State University (BSU) seeking to nullify Commission on
Audit (COA) Decision No. 2003-112
1
and Decision No. 2005-019
2
dated March 17, 2005. COA Decision No. 2003-112 affirmed COA-CAR
Decision No. 2000-3, disallowing the rice subsidy and health care allowance to the employees of BSU, while COA Decision 2005-019 denied
BSU's motion for reconsideration.
On July 6, 1997, Congress passed Republic Act No. 8292 entitled An Act Providing for the Uniform Composition and Powers of the Governing
Boards, the Manner of Appointment and Term of Office of the President of Chartered State Universities and Colleges, and for Other
Purposes, commonly known as the Higher Education Modernization Act of 1997. Pursuant to Section 4 (d) of the said law, the Board of
Regents of BSU passed and approved Board Resolution No. 794 on October 31, 1997, granting rice subsidy and health care allowance to
BSUs employees. The sums were taken from the income derived from the operations of BSU and were given to the employees at di fferent
periods in 1998.
On October 20, 1999, the grant of this rice subsidy and health care allowance in the total amount of P4,350,000.00 was disallowed in audit
under Notice of Disallowance No. 99-001-STF (98), stating that R.A. No. 8292 does not provide for the grant of said allowance to employees
and officials of the university.
3

BSU requested the lifting of the disallowance with the COA Regional Office but it was denied in COA-CAR Decision No. 2000-3 dated January
26, 2000.
4
Citing Section 55 (2) of R.A. No. 8522 or the General Appropriation Act of 1998, it held that a non-existent item, project, activity,
purpose, or object of expenditure cannot be funded by augmentation from savings or by the use of appropriations. It further held that the
grant of said allowances lacked statutory basis, transgressed the constitutional proscription on additional, double, or indirect compensation
and ran counter to the provisions of the Salary Standardization Law.
BSU thereafter filed a petition for review of Decision No. 2000-3 with the COA, which petition was denied in Decision No. 2003-112
5
dated
July 17, 2003. The Commission ratiocinated:
Concededly, the provision in Section 8, Article IX-B, 1987 Constitution that, "No elective or appointive public officers or employee
shall receive additional, double or indirect compensation, unless specifically authorized by law" allows the payment of additional
compensation when specifically authorized by law. In the instant case, BSU alleges that the grant of Rice Subsidy and Health Care
allowance to its employees in 1998 is authorized by law, specifically Section 4 of R.A. No. 8292, otherwise known as the Higher
Education Modernization Act of 1997. However, a closer perusal of the specific legal provision which reads thus:
"Sec. 4. Powers and Duties of Governing Boards
x x x
"d) x x x
Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by the
university or college, from tuition fee and other charges, as well as from the operation of auxiliary services and land
grants, shall be retained by the university or college, and may be disbursed by the Board of Regents/Trustees
for instruction, research, extension or other programs/projects of the university or college x x x"
clearly negate such claim of authority. It is noted that the term "other programs/projects" refers to such programs which the
university may specifically undertake in pursuance of its primary objective which is to attain quality higher education. The law
could not have intended that the term "program/projects" embrace all programs of BSU, for these benefits, though part of the
overall operations, are not directly related to BSU's academic program. Under the maxim of ejusdem generis, the mention of a
general term after the enumeration of specific matters should be held to mean that the general term should be of the same genus
as the specific matters enumerated and, therefore, the "other programs and projects" should be held to be of the same nature as
instruction, research and extension. The inclusion of an incentive such as Rice Subsidy and Health Care Allowance to its teachers
and non-teaching personnel is a patent or blatant disregard of the statutory limitation on the powers of the governing Board of
SUCs, as these benefits are indubitably not one of instruction, research or extension.
Furthermore, employment in government service guarantees salaries and other compensation packages and benefits pursuant to
pertinent provisions of the Civil Service Law. Allowing other benefits to be granted in excess of those authorized by law is illegal. As
such, BSU's attempt to grant benefits over and above those granted by the Civil Service Law cannot be countenanced.
6

A motion for reconsideration was filed but was denied in the assailed Decision No. 2005-019 dated March 17, 2005.
7

Hence, this petition with BSU positing these issues:
A. Whether or not Petitioner is authorized to grant Health Care Allowance and Rice Subsidy to its employees; and
B. Whether or not the recipients should reimburse the amounts received by them.
8

Before addressing the issues raised in the present petition, it bears noting that what was filed before this Court is a petition captioned as
a Petition for Review on Certiorari. We point out that a petition for review on certiorari is not the proper mode by which the COAs decisions
are reviewed by this Court. Under Rule 64, Section 2 of the 1997 Rules of Civil Procedure, a judgment or final order of the COA may be
brought by an aggrieved party to this Court oncertiorari under Rule 65.
9
Thus, it is only through a petition for certiorari under Rule 65 that
the COA's decisions may be reviewed and nullified by us on the ground of grave abuse of discretion or lack or excess of jurisdiction.
10

However, though captioned as a Petition for Review on Certiorari, we treat this petition as a petition for certiorariunder Rule 65 for it
alleges "grave abuse of discretion" and "reversible legal error." The averments in the complaint, not the nomenclature given by the parties,
determine the nature of the action.
11
Likewise, in previous rulings, We have treated differently labeled actions as special civil actions
for certiorari under Rule 65 for reasons such as justice, equity, and fair play.
12

BSU ascribes legal error and grave abuse of discretion to the COA in affirming the disallowance of the rice subsidy and health care benefits.
Relying on R.A. No. 8292, BSU maintains that it can grant said benefits to its employees. It argues that the said law vests state universities
and colleges with fiscal autonomy, and grants them ample leeway in the appropriation and disbursement of their funds. BSU adds that the
grant did not contravene the constitutional prohibition on additional compensation because the allowances are granted as an i ncentive in
appreciation of services rendered and in recognition of the economic plight of the employees. Also, the amounts used were taken from
income generated by its operation and retained by the university which, under R.A. No. 8292, may be disbursed by its Governing Board in a
manner it may determine to carry out its programs. Finally, it argues that the Salary Standardization Law does not expressly prohibit the
benefits, because the said allowances are in the nature of a financial assistance and not an additional income.
We affirm the assailed Decisions.
BSUs contention that it is authorized to grant allowances to its employees is based on Section 4 (d) of R.A. No. 8292. The provision reads:
SECTION 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in
addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a
corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:
x x x x x x x x x
d) to fix the tuition fees and other necessary school charges, such as but not limited to matriculation fees, graduation fees and
laboratory fees, as their respective boards may deem proper to impose after due consultations with the involved sectors.
Such fees and charges, including government subsidies and other income generated by the university or college, shall constitute
special trust funds and shall be deposited in any authorized government depository bank, and all interests shall accrue therefrom
shall part of the same fund for the use of the university or college: Provided, That income derived from university hospitals shall be
exclusively earmarked for the operating expenses of the hospitals.
Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by the university or
college from tuition fees and other charges, as well as from the operation of auxiliary services and land grants, shall be retained by
the university or college, and may be disbursed by the Board of Regents/Trustees for instruction, research, extension, or other
programs/projects of the university or college: Provided, That all fiduciary fees shall be disbursed for the specific purposes for
which they are collected.
If, for reasons beyond its control, the university or college, shall not be able to pursue any project for which funds have been
appropriated and, allocated under its approved program of expenditures, the Board of Regents/Trustees may authorize the use of
said funds for any reasonable purpose which, in its discretion, may be necessary and urgent for the attainment of the objectives
and goals of the universities or college;
x x x x x x x x x
Similarly, Commission on Higher Education (CHED) Memorandum No. 03-01, the Revised Implementing Rules and Regulations (IRR) for R.A.
No. 8292, provides:
RULE V
Powers and Duties of the Governing Boards
SECTION 18. Powers and Duties of Governing Boards (GBs). The GBs of chartered SUCs shall have the following powers and
duties, in addition to its general powers of administration and the exercise of all the powers granted to a Board of Directors of a
corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the "Corporation Code of the Philippines," thus:
x x x x x x x x x
(d) to fix the tuition fees and other necessary charges, such as, but not limited, to matriculation fees, graduation fees and
laboratory fees, as they may deem proper to impose, after due consultations with the involved sectors.
Such fees and charges, including government subsidies and other income generated by the university or college, shall constitute
special trust funds and shall be deposited in any authorized government depository bank, and all interest that shall accrue
therefrom shall be part of the same fund for the use of the university or college: Provided, that income derived from university or
college hospitals shall be exclusively earmarked for the operations of the hospitals.
Any income generated by the university or college from tuition fees and other charges, as well as from the operation of auxiliary
services and land grants, shall be retained by the university or college, and may be disbursed by its GB for instruction, research,
extension, or other programs/projects of the university or college: Provided, That all fiduciary fees shall be disbursed for the
specific purposes for which they are collected.
If, for reasons beyond its control, the university or college shall not be able to pursue any project for which funds have been
appropriated and allocated under its approved program of expenditures, its GB may authorize the use of said funds for any
reasonable purpose which, in its discretion, may be necessary and urgent for the attainment of the objectives and goals of the
university or college;
x x x x x x x x x
What is clear from Section 4 (d) of R.A. No. 8292 cited by BSU as legal basis of its claim as well as from its implementing rules is that income
generated by the university may be disbursed by its Governing Board for "instruction, research, extension, or other programs/projects of
the university or colleges."
BSU theorizes that the phrase "other programs/projects of the university or college" in Section 4 (d) covers all projects and programs of the
university, including those designed to uplift the economic plight of the employees. It is not limited to those programs which the university
may specifically undertake in pursuance of its primary objective to achieve quality education, contrary to the interpretation of the COA.
We disagree.
Under the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic
character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be
something in the context of the statute which would repel such inference.
13
The COA correctly ruled that the "other programs/projects"
under R.A. No. 8292 and its Implementing Rules should be of the same nature as instruction, research, and extension. In BSU's case, the
disbursements were for rice subsidy and health care allowances which are, in no way, intended for academic programs similar to
instruction, research, or extension. Section 4 (d) cannot, therefore, be relied upon by BSU as the legal basis for the grant of the allowances.
Furthermore, a reading of the entire provision supports the COAs interpretation that the authority given to the Governing Board of state
universities and colleges is not plenary and absolute. It is clear in Section 4 that the powers of the Governing Board are subject to
limitations. This belies BSU's claim of plenary and absolute authority.
Neither can BSU find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and
in
R.A. No. 8292 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may
teach, what may be taught, how it shall be taught, and who may be admitted to study.
14
The guaranteed academic freedom does not grant
an institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis. Unfortunately
for BSU, it failed to present any sound legal basis that would justify the grant of these additional benefits to its employees.
Section 8, Article IX-B of the 1987 Constitution, is clear that:
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 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.
Besides, Section 12 of R.A. No. 6758 or the Salary Standardization Law already provides for consolidation of allowances in the standardized
salary rates, thus:
SEC. 12. Consolidation of All Allowances and Compensation. All allowances, except for representation and transportation
allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and
hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation
not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates
herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1,
1989 not integrated into the standardized salary rates shall continue to be authorized.
The benefits excluded from the standardized salary rates are the "allowances" which are usually granted to officials and employees of the
government to defray or reimburse the expenses incurred in the performance of their official functions.
15
Clearly, the rice subsidy and
health care allowance granted by BSU were not among the allowances listed in Section 12 which State workers can continue to receive
under R.A. No. 6758 over and above their standardized salary rates. Hence, no abuse of discretion was committed by the COA in disallowing
the disbursement of funds.
As regards the refund of the disallowed benefits, this Court holds that the employees need not refund the benefits they received based on
our ruling in Philippine Ports Authority v. Commission on Audit.
16
In that case, the COA disallowed the payment of hazard duty pay and
birthday cash gifts to its employees. This Court sustained the disallowance because the grant was without legal basis. However, this Court
ruled against the refund holding that:
x x x Petitioners received the hazard duty pay and birthday cash gift in good faith since the benefits were authorized by PPA Special
Order No. 407-97 issued pursuant to PPA Memorandum Circular No. 34-95 implementing DBM National Compensation Circular No.
76, series of 1995, and PPA Memorandum Circular No. 22-97, respectively. Petitioners at the time had no knowledge that the
payment of said benefits lacked legal basis. Being in good faith, petitioners need not refund the benefits they received.
17

The ruling in Philippine Ports Authority applies to this case. The BSU employees received the rice subsidy and health care allowances in good
faith since the benefits were authorized by Board Resolution No. 794, series of 1997. They had no knowledge that the grant of said benefits
lacked statutory basis. Therefore, a refund is unnecessary.
WHEREFORE, the instant petition is DENIED. Commission on Audit Decisions No. 2003-112 and No. 2005-019 areAFFIRMED but
with MODIFICATION that BSU employees need not refund the rice subsidy and health care allowance received per Board Resolution No.
794, series of 1997.
No pronouncement as to costs.
SO ORDERED.
EFREN M. HERRERA and ESTHER C.
GALVEZ, for and on their behalf and
on behalf of OTHER SEPARATED,
UNREHIRED and RETIRED
EMPLOYEES OF THE NATIONAL
POWER CORPORATION,
Petitioners,

- versus -

NATIONAL POWER CORPORATION,
THE DEPARTMENT OF BUDGET
AND MANAGEMENT and THE
OFFICE OF THE SOLICITOR
GENERAL,
Respondents.

G.R. No. 166570



Present:

CARPIO,* J., Chairperson,
LEONARDO-DE CASTRO,**
BRION,
DEL CASTILLO, and
ABAD, JJ.



Promulgated
December 18, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

DEL CASTILLO, J.:

The question at the heart of this case is whether petitioners, former employees of the National Power Corporation (NPC) who were
separated from service due to the governments initiative of restructuring the electric power industry, are entitled to their retirement
benefits in addition to the separation pay granted by law.

Absent explicit statutory authority, we cannot provide our imprimatur to the grant of separation pay and retirement benefits from one single
act of involuntary separation from the service, lest there be duplication of purpose and depletion of government resources. Within the
context of government reorganization, separation pay and retirement benefits arising from the same cause, are in consideration of the same
services and granted for the same purpose. Whether denominated as separation pay or retirement benefits, these financial benefits reward
government service and provide monetary assistance to employees involuntarily separated due to bona fide reorganization.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court on a pure question of law against the Decision[1] dated
December 23, 2004 rendered by the Regional Trial Court (RTC), Branch 101, Quezon City in SCA No. Q-03-50681 (for Declaratory Relief)
entitled National Power Corporation v. Napocor Employees and Workers Union (NEWU), NAPOCOR Employees Consolidated Union (NECU),
NPC Executive Officers Association, Inc. (NPC-EXA), Esther Galvez and Efren Herrera, for and on their behalf and in behalf of other separated,
unrehired, and retired employees of the National Power Corporation, the Department of Budget and Management (DBM), the Office of the
Solicitor General (OSG), the Civil Service Commission (CSC) and the Commission on Audit (COA). Said Decision ruled that the petitioners are
not entitled to receive retirement benefits under Commonwealth Act No. 186 (CA No. 186),[2] as amended, over and above the separation
benefits they received under Republic Act (RA) No. 9136,[3] otherwise known as the Electric Power Industry Reform Act of 2001 (EPIRA).

Legal and factual background

RA No. 9136 was enacted on June 8, 2001 to provide a framework for the restructuring of the electric power industry, including the
privatization of NPCs assets and liabilities.*4+ One necessary consequence of the reorganization was the displacement of employees from
the Department of Energy, the Energy Regulatory Board, the National Electrification Administration and the NPC. To soften the blow from
the severance of employment, Congress provided in Section 63 of the EPIRA, for a separation package superior than those provided under
existing laws, as follows:

SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government employees displaced or
separated from the service as a result of the restructuring of the [electric power] industry and privatization of NPC assets pursuant to this
Act, shall be entitled to either a separation pay and other benefits in accordance with existing laws, rules or regulations or be entitled to
avail of the privileges provided under a separation plan which shall be one and one-half month salary for every year of service in the
government: Provided, however, That those who avail of such privilege shall start their government service anew if absorbed by any
government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the full
implementation of the restructuring and privatization. x x x (Emphasis supplied)

The implementing rules of the EPIRA, approved by the Joint Congressional Power Commission on February 27, 2002,[5] further
expounded on the separation benefits, viz:

RULE 33. Separation Benefits

Section 1. General Statement on Coverage.

This Rule shall apply to all employees in the National Government service as of June 26, 2001 regardless of position, designation or
status, who are displaced or separated from the service as a result of the restructuring of the electric [power] industry and privatization of
NPC assets: Provided, however, That the coverage for casual or contractual employees shall be limited to those whose appointments were
approved or attested [to] by the Civil Service Commission (CSC).

Section 2. Scope of Application.

This Rule shall apply to affected personnel of DOE, ERB, NEA and NPC.

Section 3. Separation and Other Benefits.

(a) The separation benefit shall consist of either a separation pay and other benefits granted in accordance with existing laws, rules and
regulations or a separation plan equivalent to one and one half (1-12) months salary for every year of service in the government, whichever
is higher; Provided, That the separated or displaced employee has rendered at least one (1) year of service at the time of effectivity of the
Act.

x x x x

(e) For this purpose, Salary, as a rule, refers to the basic pay including the thirteenth (13th) month pay received by an employee
pursuant to his appointment, excluding per diems, bonuses, overtime pay, honoraria, allowances and any other emoluments received in
addition to the basic pay under existing laws.

(f) Likewise, Separation or Displacement refers to the severance of employment of any official or employee, who is neither qualified
under existing laws, rules and regulations nor has opted to retire under existing laws, as a result of the Restructuring of the electric power
industry or Privatization of NPC assets pursuant to the Act. (Emphasis supplied)

On February 28, 2003, all NPC employees, including the petitioners, were separated from the service. As a result, all the employees
who held permanent positions at the NPC as of June 26, 2001 opted for and were paid the corresponding separation pay equivalent to one
and a half months salary per year of service. Nonetheless, in addition to the separation package mandated by the EPIRA, a number of NPC
employees also claimed retirement benefits under CA No. 186,[6] as amended by RA No. 660[7] and RA No. 1616.[8] Under these laws,
government employees who have rendered at least 20 years of service are entitled to a gratuity equivalent to one months salary for every
year of service for the first 20 years, one and a half months salary for every year of service over 20 but below 30 years, and two months
salary for every year of service in excess of 30 years.[9]
The NPC, on the other hand, took the position that the grant of retirement benefits to displaced employees in addition to separation
pay was inconsistent with the constitutional proscription on the grant of a double gratuity. Unable to amicably resolve this matter with its
former employees, the NPC filed on September 18, 2003, a Petition for Declaratory Relief[10] against several parties,[11] including the
petitioners, before the RTC of Quezon City, to obtain confirmation that RA No. 9136 did not specifically authorize NPC to grant retirement
benefits in addition to separation pay.[12] The case was docketed as SCA No. Q-03-50681 and raffled to Branch 101 of said court.

After submission of the respondents respective Answers and Comments,*13+ the parties agreed that the court a quo would resol ve
the case based on the arguments raised in their memoranda[14] since only a question of law was involved.[15] In due course, the court a
quo rendered the assailed Decision, finding that employees who received the separation benefit under RA No. 9136 are no longer entitled to
retirement benefits:

The aforementioned law speaks of two (2) options for the employee to choose from, that is: (1) to receive separation pay and other
benefits in accordance with existing laws, rules, and regulations or (2) to avail of the privileges provided under a separation plan (under R.A.
9136), which shall be one and one half months salary for every year of service in the government.

Under Section 3(f) of Rule 33 of the Implementing Rules and Regulations of R.A. 9136, separation or displacement refers to the
severance of employment of any official or employee, who is neither qualified under existing laws, rules, and regulations nor has opted to
retire under existing laws as a result of the Restructuring of the electric power industry or Privatization of NPC assets pursuant to the act.
Thus, it is clear that the receipt of benefits under the EPIRA law, by employees who opted to retire under such law bars the receipt of
retirement benefits under R.A. 1616.

Moreover, Section 8 of Article IX-B of the 1987 Constitution prohibits the grant of both separation pay and retirement benefits. x x x

x x x x

In said constitutional provision, it is x x x clear that additional or indirect compensation is barred by law and only [allowed] when so
specifically authorized by law. Furthermore, on the Private Respondents' contention that the second paragraph should be applied in their
*case+, the same will not hold water. This is so because retirement benefits *are+ not synonymous to pension or gratuities as contemplated
by law.

R.A. 9136 did not clearly and unequivocally authorize the payment of additional benefits to Private Respondents as the benefits
referred to in such law should not be interpreted to include retirement benefits in addition to their separation pay. Separation from service
due to [the] restructuring of the [electric+ power industry should not be interpreted to mean retirement as both are different in every
respect. The law specifically defines the meaning of separation by virtue of the restructuring. x x x

x x x x

Thus, the Respondent-Employees are not entitled to receive retirement benefits under Republic Act No. 1616 over and above the
separation benefits they received under Republic Act No. 9136.[16]

Petitioners sought recourse from the assailed Decision directly before this court on a pure question of law. The Department of Budget
and Management (DBM) submitted its Comment on June 30, 2005,[17] while the NPC, through the Office of the Solicitor General, filed its
Comment on August 23, 2005.[18] Petitioners then filed their Consolidated Reply by registered mail on November 18, 2005.[19] After the
parties filed their respective memoranda,[20] the case was
submitted for decision.

Petitioners arguments

Before us, petitioners argue that:

1) The EPIRA does not bar the application of CA No. 186, as amended. Petitioners are therefore entitled to their retirement pay in addition
to separation pay.

2) Petitioners have vested rights over their retirement benefits.

3) The payment of both retirement pay and separation pay does not constitute double compensation, as the Constitution provides that
pensions or gratuities shall not be considered as additional, double or indirect compensation.

Respondents arguments

Respondents NPC and the DBM, on the other hand, maintain that:

1) Section 63 of RA No. 9136 and Section 3, Rule 33 of its Implementing Rules and Regulations do not authorize the grant of retirement
benefits in addition to the separation pay already received. Rather, Section 63 requires separated employees to choose between a
separation plan under existing laws or the separation package under the EPIRA.

2) The grant of both separation pay and retirement benefit amounts to double gratuity in direct contravention of the Constitution.

3) No law authorizes the payment of both separation pay and retirement benefits to petitioners.


Issue

The sole issue in this case is whether or not NPC employees who were separated from the service because of the reorganization of the
electric power industry and who received their separation pay under RA No. 9136 are still entitled to receive retirement benefits under CA
No. 186, as amended.

Our Ruling

We deny the petition and affirm the court a quos Decision dated December 23, 2004 in SCA No. Q-03-50681.

Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits violates the constitutional
proscription on additional compensation.

Section 8 of Article IX(B) of the Constitution provides that *n+o elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law. In prior decisions, we have ruled that there must be a clear and
unequivocal statutory provision to justify the grant of both separation pay and retirement benefits to an employee.[21] Here, absent an
express provision of law, the grant of both separation and retirement benefits would amount to double compensation from one single act of
separation from employment.

Petitioners claim that Section 9 of RA No. 6656[22] amounts to sufficient statutory basis for the grant of both retirement benefits and
separation pay. Section 9 provides:

x x x Unless also separated for cause, all officers and employees, who have been separated pursuant to reorganization shall, if
entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws withi n ninety (90) days from
the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be. Provided,
That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who
are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of
service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency
concerned. (Emphasis supplied)

Unfortunately for the petitioners, their interpretation has little legal precedent. The CSC has previously ruled that employees similarly
situated to petitioners herein were not entitled to both separation pay and retirement benefits; instead, the concerned employee must either
avail of the separation benefit or opt to retire if qualified under existing laws. In CSC Resolution No. 021112,[23] the CSC interpreted the
phrase separation pay and retirement in RA No. 6656 as follows:

x x x While the aforequoted provision of law used the conjunctive "and" between the words "separation pay" and "retirement", this
does not mean that both benefits shall be given to an affected employee. This interpretation is supported by the phrase "if entitled thereto"
found before the phrase "be paid the appropriate separation pay and retirement and other benefits under existing laws". Thus, payment of
both separation and retirement benefits is not absolute.

Also, in CSC Resolution No. 00-1957,[24] the CSC declared:

The aforequoted provision of law says: separation pay and retirement and other benefits under existing laws. Be it noted that the
conjunctive and is used between separation pay and retirement, which in its elementary sense would mean that they are to be taken
jointly. (Ruperto G. Martin, Statutory Construction, sixth edition, p. 88) Obviously, therefore, separation pay and retirement refer to only
one benefit, of which an employee affected by the reorganization, if entitled thereto, must be paid plus other benefits under existing laws,
i.e. terminal leave pay, etc.


Further, in Cajiuat v. Mathay,[25] we found that in the absence of express provisions to the contrary, gratuity laws should be construed
against the grant of double compensation. Cajiuat involved employees of the Rice and Corn Administration who exercised their option to
retire under CA No. 186 and received the appropriate retirement benefits. Subsequently, the Rice and Corn Administration was abolished by
Presidential Decree No. 4.[26] Said Decree also provided for the payment of a gratuity in Section 26, paragraph 3:

Permanent officials and employees of the Rice and Corn Administration who cannot be absorbed by the Administration, or who cannot
transfer or to be transferred to other agencies, or who prefer to retire, if qualified for retirement, or to be laid off, shall be given gratuity
equivalent to one month salary for every year of service but in no case more than twenty-four months salary, in addition to all other
benefits to which they are entitled under existing laws and regulations. x x x

On the basis of this provision, the retired employees of the Rice and Corn Administration claimed that they were entitled to the separation
gratuity, over and above the retirement benefits already received. We disagreed and held that:

x x x [t]here must be a provision, clear and unequivocal, to justify a double pension. The general language employed in paragraph 3, Section
26 of Presidential Decree No. 4 fails to meet that test. All that it states is that permanent employees of the Rice and Corn Administration
who are retirable are entitled to gratuity equivalent to one month salary for every year of service but in no case more than twenty four
months salary in addition to other benefits to which they are entitled under existing laws and regulations. To grant double gratuity is
unwarranted. No reliance can be placed *on+ the use of the term other benefits found in the paragraph relied upon. As clearly stated in the
memorandum of the Solicitor General, they refer to those receivable by a retiree under the general retirement laws, like the refund of
contributions to the retirement fund and the money value of the accumulated vacation and sick leaves of said official employee. The clause
in addition to all other benefits to which they are entitled under existing laws and regulations was inserted to insure the payment to the
retiree of the refund of the contributions to the retirement fund and the money value of the accumulated vacation and sick leaves of said
official or employee.[27]

Nothing in the EPIRA justifies the grant of both the separation package and retirement benefits.

The EPIRA, a legislative enactment dealing specifically with the privatization of the electric power industry, provides:

SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government employees displaced or
separated from the service as a result of the restructuring of the [electric power] industry and privatization of NPC assets pursuant to this
Act, shall be entitled to either a separation pay and other benefits in accordance with existing laws, rules or regulations or be entitled to
avail of the privileges provided under a separation plan which shall be one and one-half month*s+ salary for every year of service in the
government: Provided, however, That those who avail of such privilege shall start their government service anew if absorbed by any
government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the full
implementation of the restructuring and privatization. x x x (Emphasis supplied)

A careful reading of Section 63 of the EPIRA affirms that said law did not authorize the grant of both separation pay and retirement benefits.
Indeed, the option granted was either to a separation pay and other benefits in accordance with existing laws, rules and regulations or to
a separation plan which shall be one and one-half months salary for every year of service in the government. The options were
alternative, not cumulative. Having chosen the separation plan, they cannot now claim additional retirement benefits under CA No. 186.

This position finds further support in Section 3(f), Rule 33 of RA No. 9136s Implementing Rules and Regulations, which provides:

(f) likewise, separation or displacement refers to the severance of employment of any official or employee, who is neither qualified
under existing laws, rules and regulations nor has opted to retire under existing laws, as a result of the restructuring of the electric power
industry or privatization of NPC assets pursuant to the act.

As worded, Rule 33, Section 3(f) of the Implementing Rules and Regulations of RA No. 9136 precludes the receipt of both separation and
retirement benefits. A separated or displaced employee, as defined by the implementing rules, does not include one who is qualified or has
opted to retire under existing laws. Consequently, a separated employee must choose between retirement under applicable laws or
separation pay under the EPIRA.

Within the context of reorganization, petitioners cannot claim a vested right over their retirement benefits.

Petitioners claim that having religiously paid their premiums, they have vested rights to their retirement gratuities which may not be
revoked or impaired. However, petitioners fail to consider that under the retirement laws that they themselves invoke, separation from the
service, whether voluntary or involuntary, is a distinct compensable event from retirement.[28] Nothing in said laws permits an employee to
claim both separation pay and retirement benefits in the event of separation from the service due to reorganization.

Thus, absent an express provision of law to the contrary, separation due to reorganization gives rise to two possible scenari os: first,
when the separated employee is not yet entitled to retirement benefits, second, when the employee is qualifi ed to retire. In the first case,
the employees separation pay shall be computed based on the period of service rendered in the government prior to the reorganization. In
the second case, where an employee is qualified to retire, he or she may opt to claim separation or retirement benefits.


Contradistinction with Larao v. Commission on Audit

We are, of course, aware that in Larao v. Commission on Audit[29] we held that employees, who were separated from the service because
of the reorganization of the Metropolitan Waterworks and Sewerage System (MWSS) and Local Waterworks and Utilities Administration
(LWUA) pursuant to RA No. 8041, were entitled to both a separation package and retirement benefits.[30]

In Larao, however, the Early Retirement Incentive Plan submitted to and approved by then President Fidel V. Ramos explicitly provided for
a separation package that would be given over and above the existing retirement benefits. Therein lies the fundamental difference. Hence,
unlike in this case, there was specific authority for the grant of both separation pay and retirement benefits.

WHEREFORE, the petition is DENIED. The Decision dated December 23, 2004 of the Regional Trial Court of Quezon City, Branch 101 in SCA
No. Q-03-50681 holding that petitioners are not entitled to receive retirement benefits under Commonwealth Act No. 186, as amended is
AFFIRMED with MODIFICATION that petitioners are entitled to a refund of their contributions to the retirement fund, and the monetary
value of any accumulated vacation and sick leaves.

[G.R. No. L-26608. March 31, 1971.]

PEDRO G. PERALTA, Petitioner, v. AUDITOR GENERAL ISMAEL MATHAY, Respondent.

Pedro G. Peralta in his own behalf.

Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Bernardo P. Pardo for Respondent.


SYLLABUS


1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; PROHIBITION AGAINST DOUBLE COMPENSATION. It is expressly provided in
the Constitution: "No officer or employee of the government shall receive additional or double compensation unless specifically authorized
by law." 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 an 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. It is an entirely different matter if the
legislative body would itself determine for reasons satisfactory to it that he should receive something more. If it were to be thus though,
there must be a law to that effect. So the Constitution decrees.

2. ID.; ID.; ID.; APPLICATION; GSIS OFFICERS. As is expressly declared in the Constitution, the Civil Service is to embrace "all branches and
subdivisions of the Government * * *." Conformably to the above, the Philippine Civil Service, by law, includes all branches, subdivisions and
instrumentalities of the Government, including government-owned or controlled corporations . . . ." Petitioner has not disputed, nor can he
dispute that as a trustee, he was an officer of the government, the GSIS having been established in order "to promote the efficiency and
welfare of the employees of the Government of the Philippines and to replace the [then] pension systems established in [previ ous acts+. As
such officer, petitioner cannot receive additional or double compensation unless specifically authorized by law.

3. ID.; ID.; ID.; PER DIEM; INCLUDED. Under the GSIS Act. petitioner is entitled as trustee "to a per diem of P25.00 for each day of actual
attendance in session." As in the case of government controlled corporations, the term per diems" was used in the sense the compensation
or remuneration attached to the office of Trustee. Such is not the meaning usually attached to it. So it was noted in Lexal Laboratories v.
National Chemical Industries Workers Union, (L-24632, October 26, 1968, 25 SCRA 668). A "per diem" is commonly identified with the daily
allowance "for each day he (an officer or employee) was away from his home base." Its usual signification is thus that a reimbursement for
expenses incurred in the performance of ones duties. If employ in a statute, as in this case, in the concept of remuneration, however, there
must be, to justify an additional compensation, a specific law that so provides. Otherwise, fidelity to the constitutional command is lacking.

4. ID.; ID.; ID.; COST OF LIVING ALLOWANCE, INCLUDED. A similar approach is called for in determining the nature of a cost of living
allowance. If it could rightfully be considered as in the nature of a reimbursement rather than additional emoluments or perquisites, then
the ruling of respondent Auditor General cannot find support in the Constitution. What was said in an American State decision has
relevance. It was therein categorically stated "that it is universally held that an allowance for expenses incident to the discharge of the
duties of office is not an increase of salary, a perquisite, nor an emolument of office." To the same effect is this excerpt appearing later in the
opinion: "A careful and, we believe, exhaustive examination of the decisions fails to disclose a single case in which it has ever been held that
a legislative act, providing for an allowance, for expenses incurred in the discharge of official duties, to a public officer, whose salary or
compensation was fixed at a stated sum, was in violation of provisions such as are found in many state Constitutions, forbidding an increase
of salary during official terms, or forbidding the granting of fees, perquisites, or emoluments to such officer. Legisl ative acts which
directly in terms, or as construed, attempted to increase such salaries, have been held invalid. But no decision has been found or, as we
believe, can be found, which holds a legislative act to be unconstitutional which merely relieves an officer, who received a fixed salary or
compensation, from expending such salary for expenses incident to the performance of his official duties." It is worth noting that there are
specific provisions in the applicable statutes allowing trustees or directors, traveling expenses which may be collected by the board of
directors of the Philippines Virginia Tobacco Administration; traveling and subsistence expenses by the members and board of directors of
the Central Luzon-Cagayan Valley Authority; and traveling and other necessary expenses by the members of the Philippine Medical Care
Commission. Such provisions are prompted by what may appear to be an excess of caution, for the accepted doctrine is that an allowance to
take care of expenses incurred by an official to enable him to fulfill his task cannot be looked upon as an additional compensation. Such a
principle does not come to the aid of petitioner though. He was unable to show that the cost of living allowance received by him was in the
nature of a reimbursement. It did amount then to an additional compensation.

5. ID.; ID.; ID.; BONUS, INCLUDED. It is quite obvious that by its very nature, a bonus partakes of an additional remuneration or
compensation. The very characterization of what was received by petitioner as bonuses being intended by way of an incentive to spur him
possibly to more diligent efforts and to add to the feeling of well-being traditionally associated with the Christmas season would remove any
doubt that the Auditor General had no choice except to deduct from petitioners gratuity such items.


D E C I S I O N


FERNANDO, J.:


There is need in this appeal from a decision of respondent Auditor General Ismael Mathay for an inquiry into the meaning and significance of
the constitutional inhibition against an officer or employee of the government receiving additional or double compensation unless
specifically authorized by law, 1 the decisive legal question being whether or not the cost of living allowance as well as incentive and
Christmas bonuses paid to petitioner Pedro G. Peralta, a Trustee of the Government Service Insurance System, hereinafter called the GSIS,
did fall within such a ban. The answer given by respondent Auditor General was in the affirmative. After a careful study of the matter, this
Court arrives at a similar conclusion. Hence this appeal cannot prosper.

The facts are undisputed. As set forth in the brief of petitioner, the GSIS, on May 17, 1966, in a resolution duly passed, granted him an
optional retirement gratuity of P40,336.07. Of that amount, he was not able to collect the sum of P7,032.26, covering P3,982.26 as cost of
living allowance, P1,275.00 as incentive bonus, and P1,775.00 as Christmas bonus. Such items were not passed in audit. the vi ew of
respondent Auditor General being that they should be deducted from his gratuity, although during petitioners incumbency as Trustee, no
question was raised when he was paid such allowance and bonuses. Respondent Auditor General justified his action on the ground that they
"partake of the nature of additional compensation," a trustees remuneration being fixed by law in the form of a per diem of P25.00 for
every board meeting of the GSIS attended. Respondent so ruled on June 28, 1966, and maintained such a stand on September 1, 1966 when
he denied a motion for reconsideration. Hence this appeal for review filed on September 29, 1966.

The ruling of respondent Auditor General, being in accordance with what the Constitution requires, must be upheld.

1. It is expressly provided in the Constitution: "No officer or employee of the government shall receive additional or double compensation
unless specifically authorized by law." 2 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 shoul d 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 an 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. It is an
entirely different matter if the legislative body would itself determine for reasons satisfactory to it that he should receive something more. If
it were to be thus though, there must be a law to that effect. So the Constitution decrees.

As is expressly declared in the Constitution, the Civil Service is to embrace "all branches and subdivisions of the Government . . .." 3
Conformably to the above, the Philippine Civil Service, by law, includes "all branches, subdivisions and instrumentalities of the Government,
including government-owned or controlled corporations . . .." 4 Petitioner has not disputed, nor can he dispute that as a trustee, he was an
officer of the government, the GSIS having been established in order "to promote the efficiency and welfare of the employees of the
Government of the Philippines and to replace the [then] pension systems established in [previous acts.]" 5 As such officer, petitioner cannot
receive additional or double compensation unless specifically authorized by law. Under the GSIS Act, he is entitled as trustee "to a per diem
of P25.00 for each day of actual attendance in session." 6 As in the case of government-controlled corporations, the term "per diems" was
used in the sense of the compensation or remuneration attached to the office of Trustee 7 Such is not the meaning usually attached to it. So
it was noted in Lexal Laboratories v. National Chemical Industries Workers Union. 8 A "per diem" is commonly identified with the daily
allowance "for each day he (an officer or employee) was away from his home base." Its usual signification is thus that of a reimbursement
for expenses incurred in the performance of ones duties. If employed in a statute, as in this case, in the concept of remuneration, however,
there must be, to justify an additional compensation, a specific law that so provides. Otherwise, fidelity to the constitutional command is
lacking.

A similar approach is called for in determining the nature of a cost of living allowance. If it could rightfully be considered as in the nature of a
reimbursement rather than additional emoluments or perquisites, then the ruling of respondent Auditor General cannot find support in the
Constitution. What was said in an American State decision 9 has relevance. It was therein categorically stated "that it is universally held
that an allowance for expenses incident to the discharge of the duties of office is not an increase of salary, a perquisite, nor an emolument of
office." 10 To the same effect is this excerpt appearing later in the opinion: "A careful and, we believe, exhaustive examination of the
decisions fails to disclose a single case in which it has ever been held that a legislative act, providing for an allowance, for expenses incurred
in the discharge of official duties, to a public officer, whose salary or compensation was fixed at a stated sum, was in violation of provisions
such as are found in many state Constitutions, forbidding an increase of salary official terms, or forbidding the granting of `fees,
`perquisites, or `emoluments to such officer. Legislative acts which directly in terms, or as construed, attempted to increase such salaries,
have been held invalid. But no decision has been found or, as we believe, can be found, which holds a legislative act to be unconstitutional
which merely relieves an officer, who received a fixed salary or compensation, from expending such salary for expenses incident to the
performance of his official duties." 11 It is worth noting that there are specific provisions in the applicable statutes allowing trustees or
directors, traveling expenses which may be collected by the board of directors of the Philippine Virginia Tobacco Administration; 12 traveling
and subsistence expenses by the members and board of directors of the Central Luzon-Cagayan Valley Authority; 13 and traveling and other
necessary expenses by the members of the Philippine Medical Care Commission. 14 Such provisions are prompted by what may appear to be
an excess of caution, for the accepted doctrine is that an allowance to take care of expenses incurred by an official to enable him to fulfill his
task cannot be looked upon as an additional compensation. Such a principle does not come to the aid of petitioner though. He was unable to
show that the cost of living allowance received by him was in the nature of a reimbursement. It did amount then to an additional
compensation.

So it is in the case of the bonuses received by him. It is quite obvious that by its very nature, a bonus partakes of an additional remuneration
or compensation. 15 The very characterization of what was received by petitioner as bonuses being intended by way of an incentive to spur
him possibly to more diligent efforts and to add to the feeling of well-being traditionally associated with the Christmas season would remove
any doubt that the Auditor General had no choice except to deduct from petitioners gratuity such items.

2. It is apparent that respondent Auditor General accorded respect and deference to a constitutional command. To impute legal error to his
actuation is to be oblivious of the fundamental postulate that the Constitution is supreme. Obedience is mandatory. It cannot be
disregarded. Every public official is sworn to uphold it. There can be no justification for any other course of action. To condone whether by
intent or inadvertence any deviation from what it prescribes is to display less than full fealty to the cardinal precept of our polity. A mistaken
sympathy for the situation in which the petitioner did find himself cannot suffice to confer authority on respondent to grant what is asked of
him in view of the constitutional ban. Both petitioner, who was himself once a public official, and respondent Auditor General must be
cognizant of the paramount character of the Constitution. Thus everyone in the public service is only the more strongly bound to submit to
such supremacy and abide by the limitations which it imposes upon every aspect of the authority thus conferred. 16

WHEREFORE, the decision of the Auditor General of June 28, 1966, as reiterated in its order denying the motion for reconsideration of
September 1, 1966, is affirmed. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ., concur.

Teehankee, J., took no part.

Barredo, J., did not take part.

[G.R. No. 93867 : December 18, 1990.]

192 SCRA 358

SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS,
Respondent.



D E C I S I O N



CRUZ, J.:



The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting
Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding
commission to investigate the December 1989 coup d' etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of
the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional
body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on
Elections) be appointed or designated in a temporary or acting capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor
General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is also
alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate Commissioner
Alfredo E. Abueg, Jr.:-cralaw

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be resolved
by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the practice in this
Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President
of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the temporary
succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of
Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the Presi dent of the
Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC.

Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on El ections would
have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There did not
seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to fill the
hiatus," as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essential ly
executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of
these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its
decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-A, Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised
for it, even with its consent, by the President of the Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to
justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate
Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of the
powers and perquisites of that temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the
temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be
corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on
Elections themselves without the participation of the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule
as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to make.

The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the
challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even
as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of
tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by designation
of the President of the Philippines.

WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission on
Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudice to
the incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire, or choosing
another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the consent of the
Commission on Appointments.: rd

SO ORDERED.

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.



PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this
case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural -born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been
candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a
majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least
ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive
office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with
his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of
pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and
the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An
attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing
himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E.
650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law,
or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee,
board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity
performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or
acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102
S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers
incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts,
and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation
to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and
execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may
have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations.
These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No
valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare
of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules
of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile
Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the
practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is
of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such
as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and
experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law
is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the
Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the
practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on
Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment
as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor
so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Phi lippine Bar
engaging in the practice of law for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal
work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on
Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar
who have been engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many
lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke,
Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization
engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of
lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In
most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of
law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass' n v.
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623,
626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would
obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon
role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without
litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the
public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late
Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there
are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and
bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work i s transacted
in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most
cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business
lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in
medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in
specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow speci alty such as tax
practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client
before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this
work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of
client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically,
so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor.
In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a
social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from
the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other
professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the
major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the
corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such
improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the
inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the
appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and
response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis,
automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the
predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early
introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a
master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have
some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex
decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex
legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer,
earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the
number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large
corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other
corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or
jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings),
appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities
which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing.
These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits
into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a
corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of
the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a
relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area
coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their
"international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce
Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent
lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law
teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the
intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances
which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate
counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "i ntersecting
managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the
need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with
global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public
entities but with each other often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer
has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through
participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons
to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and
business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure
of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to
indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating
work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team
performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning
and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to
simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now
make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law
department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk
involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of
negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these
techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They
differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights
for such legal entities at that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences
attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in
a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying
to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most
vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by
decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to
give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of
the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April
10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of
their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business
Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter
received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly
Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he
took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod
as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been
a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license
fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his
stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which
involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the
Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank
and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work
involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development,
has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a
member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional
Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and
public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies
that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the
finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the
team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the
meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation;
(3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative
drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed
from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan
World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist
or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual
remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence
to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They
carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol . 15, Nos. 3 and
4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking
into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich
and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten
years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the
only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has
no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment
of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee shoul d possess the
qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confi rmation by the
Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . .
(Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections
is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years,
and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped
notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was
intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law
practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years.
Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definiti on of law practice
which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I
cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law
practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in
advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr.
Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons
practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks
one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And
even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he
possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or
excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere
with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse,
much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs
prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus
in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would
be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in
capturing Samson. Delilah agreed on condition that

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away
from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with
anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch
his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity
as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining
order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the
constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as
Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A.
Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco1
("Cinco" for brevity) as Director IV of the COMELECs Education and Information Department ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson
Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001,
Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and Borra4 and Tuason5
as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and
assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the
same term of seven years, expiring on February 2, 2008.7 They took their oaths of office for a second time. The Office of the President
transmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation.8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal
Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the President
submitted their appointments for confirmation to the Commission on Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111 addressed to petitioner as Director IV of the
EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law
Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated April
14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the
Commissioner-in-Charge of the EID in the reassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law
Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government
offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benipayo
denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in
part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code
and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election
day shall be effected after due notice and hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.15
Petitioner also filed an administrative and criminal complaint16 with the Law Department17 against Benipayo, alleging that her
reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No.
07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the
right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims
that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC,
as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assails as
illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC
Finance Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other
emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as
COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They
all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in
constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the
President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal , whether or
not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on
reappointment under Section 1 (2), Article IX-C of the Constitution;

4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department
is illegal and without authority, having been done without the approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of
Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in
constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Court
to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless
all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the
constitutional issue is the lis mota of the case.19Respondents argue that the second, third and fourth requisites are absent in this case.
Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct
injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim
to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity.
Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued ad interim
appointments.

Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Department.
Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail
service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayos authority as Chairman of the Commission on
Elections, and as the Commissions Chief Executive Officer."21 Evidently, respondents anchor the legality of petitioners reassignment on
Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then
petitioners reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law.
Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of Benipayos assumption of office. Petitioners
personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.

Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and
Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March
22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest
opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve
the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when
she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body.
Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.23
There is no doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment and assumption of
office. Unless the constitutionality of Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners
reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue
raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the
COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left
unresolved. In keeping with this Courts duty to determine whether other agencies of government have remained within the limi ts of the
Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve any
constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the
resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-
C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term
of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be
disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is
temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution.

Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions,
namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also
found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit, respectively.
Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his
appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer
temporary in character.

The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the
independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on
Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner, a
Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments.

We find petitioners argument without merit.

An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does
not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective
until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16,
Article VII of the Constitution provides as follows:

"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress."
(Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim
appointment is utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs.
Ozaeta,25 decided on October 25, 1948, we held that:

"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that
the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in
nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character.
An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of
course distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued."
(Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect
immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs.
Secretary of the Commission on Appointments,26 this Court elaborated on the nature of an ad interim appointment as follows:

"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on
Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the
Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. I t takes
effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next
adjournment of the Congress."

Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence,
petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by
this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that:

"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent
had been extended several ad interim appointments which petitioner mistakenly understands as appointments temporary in nature.
Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is defined by Black to mean "in the
meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office
during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not
the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of
the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done
by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with
the power of appointment, is unable to act. x x x." (Emphasis supplied)

Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made
by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at
any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence.
The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of
Appeals,28 where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative
of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the
instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation
as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil
Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but
their terms are only until the Board disapproves them." (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the
civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except
for cause provided by law."29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into
office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment
he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has qualified, he
acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim
appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on
Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim
appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one,
however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interi m appointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or
acting capacity can be withdrawn or revoked at the pleasure of the appointing power.31 A temporary or acting appointee does not enjoy
any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to
the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to
justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.

x x x

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of
tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation
of the President of the Philippines."

Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a provision prohibiting
temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Sol icitor
General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose
and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." (Emphasis
supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess
of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Bri llantes vs.
Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and
Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appoi ntments that
take effect immediately.

While the Constitution mandates that the COMELEC "shall be independent"36, this provision should be harmonized with the Presi dents
power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first
confirm ad interim appointees before the appointees can assume office will negate the Presidents power to make ad interim appointments.
This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the
clear intent of the framers of the Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on
Appointments - did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with
ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory
recess. However, because of the need to avoid disruptions in essential government services, the framers of the Constitution thought it wise
to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations of the
Constitutional Commission elucidates this:

"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interim
appointments? Perhaps there should be a little discussion on that.

x x x

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating interruption of
government business, considering that we are not certain of the length of involuntary recess or adjournment of the Congress. We are
certain, however, of the involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter of
involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x.

x x x

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee,
Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.

This is otherwise called the ad interim appointments.

x x x

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last
paragraph of Section 16? (Silence) The Chair hears none; the amendment is approved."37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding
interruptions in vital government services that otherwise would result from prolonged vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:

"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to
be avoided interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments
ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the
evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential
government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs. Commission on
Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution
would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date of t heir actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February
2, 2001.40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers,
until February 15, 2002,41 the original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court.
The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio
F. Desamito was November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores
and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling,
there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To
their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before
this Court the applicability of the Gaminde ruling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was
vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional crisis" in view of
the proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case but
this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of
the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3,
2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only
on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only
have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires
that "all x x x election cases shall be heard and decided in division",46 the remaining one division would have been swamped with election
cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere absence
of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are
expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of
the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national
elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the
occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make
ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section 16,
Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by the
Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending
consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the
President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the
prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice made
by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on
her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued
an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to
Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph
Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain
and Ralph C. Lantion.49

The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appoint ing and
confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad interim appointment until the
Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the
evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to
the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC
are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the
COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed four51 of the incumbent COMELEC
members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards that
insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials and employees,
and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their
tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and
Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are
constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positi ons violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term
of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five
years, and the last members for three years, without reappointment. X x x." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can no
longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts
that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their
ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing
authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision,
the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew
the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another
matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close
of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment
as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee.
This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows:

"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of
the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new
nominations or appointments are made, shall not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the
appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto
Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes53 why by-passed ad interim appointees could be
extended new appointments, thus:

"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue
holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because
the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction during
the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by
omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President
could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly
indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said
omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim
appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on
ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the
President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the President
can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sol e appointing
power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim
appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final
under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval
under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of
seven years.

Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of
seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is
where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term.
Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more
than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his
seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person
cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the
appointee also serving more than seven years.

The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or
resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also
prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution.
This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever
being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a
full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this manner:

"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the
effect that the prohibition on reappointment applies only when the term or tenure is for seven years. But in cases where the appointee
serves only for less than seven years, he would be entitled to reappointment. Unless we put the qualifying words "without reappointment" in
the case of those appointed, then it is possible that an interpretation could be made later on their case, they can still be reappointed to serve
for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no
reappointment can be made."55 (Emphasis supplied)

In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57 that a "[r]eappointment is not
prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was
the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years
and may not be reappointed."

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution.
The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit
any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office.
The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold
otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC
without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on
Appointments.

The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on
Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments
of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the
Presidents power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appoi ntments first
issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim
appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will
nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited
reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed
even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve
beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored58the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to
wit:

"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions,
and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in
the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of
functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease
salaries of the members of the Commissions during their term of office; and 4) appointments of members would not require
confirmation."59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed
earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to t he
constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term,
in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The following
exchange in the deliberations of the Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Section 2 (2) on the
Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in the
Committees proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding
that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco
Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then
in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation of the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions
does not serve beyond 7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as
a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does
not happen by including in the appointment both temporary and acting capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the
prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may
result in an appointees total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might
wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of
the Constitution, as shown in the following discussion in the Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole
sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or
acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment
and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional
limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there will be
no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on
reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappoint ment
presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the
seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is
no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evi ls intended to
be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents,
for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C
of the Constitution.

Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner
further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from office without due process and therefore illegal.

Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have
ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that
office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission,
shall:

x x x

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphasis
supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC
personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval
of the COMELEC en banc.

Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to
her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a
Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for
holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission.65
Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this
Court held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be
considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position t o which he is
being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded
only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to
established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does
not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or
as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment
extended to him cannot be regarded as permanent even if it may be so designated x x x."

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of
Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous
argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power
happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus
Election Code, which provides as follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

x x x

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any
officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the
Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC
personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the election period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,68 exempting the
COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:

x x x

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

x x x

(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any
officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in
order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code
and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election
day shall be effected after due notice and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within
thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign
COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of
the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since
the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No.
3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second
approval from the COMELEC en banc to actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that
office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of
COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is
legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the
Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and
Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.

SO ORDERED.


G.R. No. 95346 January 18, 1991
PERFECTO V. GALIDO, petitioner,
vs.
COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents.
Paulino G. Clarin and Giselo Galido for petitioner.
De Castro & Cagampang Law Offices for private respondent.
R E S O L U T I O N

PADILLA, J.:p
This is a special civil action for certiorari and preliminary injunction with prayer for a temporary restraining order, to prohibit respondent
Commission on Elections from implementing its questioned decision dated 14 December 1989 and resolution dated 20 September 1990,
and private respondent Saturnino R. Galeon from assuming office as Mayor of Garcia-Hernandez, Province of Bohol.
Petitioner and private respondent were candidates during the 18 January 1988 local elections for the position of mayor in the Municipality
of Garcia-Hernandez, Province of Bohol. Petitioner was proclaimed duly-elected Mayor of Garcia-Hernandez, by the Municipal Board of
Canvassers.
On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the Regional Trial Court of Bohol, 7th Judicial
Region, Branch I, Tagbilaran City. After hearing, the said court upheld the proclamation of petitioner as the duly-elected Mayor of Garcia-
Hernandez, by a majority of eleven (11) votes.
Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its First Division, the COMELEC reversed
the trial court's decision and declared private respondent the duly-elected mayor by a plurality of five (5) votes. Petitioner's motion for
reconsideration was denied by the COMELEC in its en bancresolution of 20 September 1990 which affirmed the decision of its First Division.
The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial "C" after the name "Galido" were marked ballots
and, therefore, invalid. The COMELEC said:
On the argument relied upon by the appellee that the case of Inguito vs. Court of Appeals is not the case in point but the
cases of Bisnar vs. Lapasa and Katigbak vs. Mendoza, supra should be the applicable jurisprudence, the settled rule and
which is controlling is where a word or a letter recurs in a pattern or system to mark and identify ballots, the ballots
containing the same should be rejected as marked ballots (Silverio vs. Castro, supra; Inguito vs. Court of Appeals, 21 SCRA
1015), and the introduction of evidence aliunde is not necessary when the repetition of a word or letter in several ballots
in the same precinct constitutes a clear and convincing proof of a design to indentify the voters. (P. 38, Rollo of G.R. No.
95346)
On 25 September 1990, petitioner filed before this Court a petition for certiorari and injunction, which was docketed as G.R. No. 95135.
On 27 September 1990, we resolved to dismiss the said petition for failure of petitioner to comply with paragraph 4 of the Court's Circular
No. 1-88 which requires that a petition shall contain a verified statement of the date when notice of the questioned judgment, order or
resolution was received and the date of receipt of the denial of the motion for reconsideration, if any was filed. Petitioner filed a motion for
reconsideration which we denied with finality in the resolution of 4 October 1990.
Undaunted, petitioner filed on 6 October 1990 the present petition for certiorari and injunction with prayer for a restraining order (G.R. No.
95346) which contains the same allegations and legal issues contained in G.R. No. 95135.
On 11 October 1990, we issued the temporary restraining order prayed for by petitioner and required respondents to file comment on the
petition.
In his Comment, private respondent Saturnino R. Galeon moves for the dismissal of the present petition, for the following three (3) main
reasons:
1. Final decisions, orders or rulings of the Commission on Elections (COMELEC) in election contests involving elective munici pal offices are
final and executory, and not appealable. Private respondent cites Article IX (C), Section 2(2), paragraph 2 of the 1987 Constitution, which
reads as follows:
Decisions, final orders, or ruling of the Commission on election contests involving elective municipal and barangay offi ces
shall be final, executory, and not appealable.
The above constitutional provision is implemented in the Rules of Procedure promulgated by the COMELEC, particularly Part VII Rule 39,
Section 2 thereof, which reads:
Sec. 2. Non-reviewable decisions. Decisions in appeals from courts of general or limited jurisdiction in election cases
relating to the elections, returns, and qualifications of municipal and barangay official are not appealable.
According to private respondent, since appeals of COMELEC decisions in election contests involving municipal and barangay officials are not
allowed by the Constitution, it follows that the COMELEC decision in the case at bar should be executed or implemented.
2. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots) which is beyond the power of review of
this Court. The COMELEC found that the writing of the letter "C" after the word "Galido" in the fifteen (15) ballots of Preci nct 14 is a clear
and convincing proof of a pattern or design to identify the ballots and/or voters. This finding should be conclusive on the Court.
3. Exactly the same petition involving identical allegations, grounds and legal issues was dismissed with finality by this Court in G.R.
No. 95135. The inadvertent issuance of a temporary restraining order by the Court in this case has wreaked havoc and chaos in the
municipality of Garcia-Hernandez where private respondent has already assumed his position as the duly-elected mayor.
In his Reply to the Comment, petitioner avers
1 Article IX (A), Section 7 of the 1987 Constitution provides:
Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within
sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the
Commission itself Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.
Since under the same Constitution (Article VIII, Section 1), judicial power is vested in one Supreme Court, the present petition can still be
brought to the Supreme Court by certiorari. Petitioner contends that this petition is not an ordinary appeal contemplated by the Rules of
Court or by provision of the Constitution.
2. The petition involves pure questions of law. The correct interpretation of Section 211. No. 10 of Batas Pambansa Blg. 881 is definitely a
question of law. It states:
10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of
the surname accompanying the correct first name of the candidate, or the erroneous middle initial of the candidate shall
not annul the vote in favor of the latter.
In several cases decided by this Court, according to petitioner, it was held that in the appreciation of ballots where there is no
evidence aliunde of a purpose to identify the ballots, the same should not be invalidated as marked ballots. The COMELEC thus committed
grave abuse of discretion when it disregarded the cited decisions of this Court and declared that the suffix "C" after the name Galido was in
reality a countersign and not a mere erroneous initial.
3. The dismissal with finality of G.R. No. 95135 (the first petition) did not refer to the merits of the petition. The said dismissal was due to
the failure of petitioner to submit requisite papers duly certified. That is why upon petitioner's submission of the requirements in his
second (the present) petition, this Court granted the request for the issuance of a temporary restraining order.
The Court finds the petition to be without sufficient merit.
The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials and has appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction.
(Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution).
In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15) ballots in the same precinct
containing the letter "C" after the name Galido are clearly marked ballots. May this COMELEC decision be brought to this court by a petition
for certiorari by the aggrieved party (the herein petitioner)?
Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided
by this Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which provides that decisions,
final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory,
and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests
involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way
of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Thus
MR. FOZ. So, the amendment is to delete the word "inappealable."
MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always final, as
distinguished from interlocutory orders. So, it should read: "However, decisions, final orders or rulings," to distinguish
them from intercolutory orders, ". . . of the Commission on Elections on municipal and barangay officials shall be final and
IMMEDIATELY executory."
That would be my proposed amendment.
MR. FOZ. Accepted, Mr. Presiding Officer.
MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are
final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special
civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court.
MR. FOZ. That is understood, Mr. Presiding Officer.
MR. REGALADO. At least it is on record.
Thank you, Mr. Presiding Officer.
1

We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction
in rendering the questioned decision. It is settled that the function of a writ of certiorari is to keep an inferior court or tribunal within the
bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction.
As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on physical evidence, equity,
law and justice, and apply established jurisprudence in support of its findings and conclusions; and that the extent to which such
precedents apply rests on its discretion, the exercise of which should not be controlled unless such discretion has been abused to the
prejudice of either party. (Rollo, p. 107)
Finally, the records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez as the duly-elected
mayor of the municipality by virtue of the COMELEC decision. The main purpose of prohibition is to suspend all action and prevent the
further performance of the act complained of. In this light, the petition at bar has become moot and academic. (G.R. No. 81383. Atty.
Felimon et al. vs. Atty. Belena et al. Apr. 5, 1988 resolution.)
ACCORDINGLY, the petition is DISMISSSED. The temporary restraining order earlier issued by the Court is LIFTED.
SO ORDERED.
G.R. Nos. 93419-32 September 18, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA ABARIDO, AVELINA
BUTASLAC, ROSELLANO BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE LUMANGTAD, MAXIMO RACAZA, NENA RACAZA, VICTORIANO/
VICTOR RAGO, EDNA TEJAS, MERCEDITA TEJAS, TEOFISTO TEJAS, BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents.
Jose P. Balbuena for petitioner.
Fred B. Casas for respondents.

GANCAYCO, J.:
The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and
prosecution of election offenses filed in said court is the center of controversy of this petition.
On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar of Toledo City, against
private respondents for alleged violation of the Omnibus Election Code. The COMELEC directed Atty. Manuel Oyson, Jr., Provincial Election
Supervisor of Cebu, to conduct the preliminary investigation of the case.
After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima facie case and recommending
the filing of an information against each of the private respondents for violation of Section 261 (y) (2) and (5) of the Omnibus Election Code.
The COMELEC en banc in minute resolution No. 89-1291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2,
1989 resolved to file the information against the private respondents as recommended.
On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of Toledo City docketed as Criminal
Cases Nos. TCS-1220 to TCS-1234. In three separate manifestations the Regional Election Director of Region VII was designated by the
COMELEC to handle the prosecution with the authority to assign another COMELEC prosecutor.
Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant of arrest wi th the
respondent court on the ground that no preliminary investigation was conducted. On February 22, 1990 an order was issued by respondent
court directing the COMELEC through the Regional Election Director of Region VII to conduct a reinvestigation of said cases and to submit
his report within ten (10) days after termination thereof. The Toledo City INP was directed to hold in abeyance the service of the warrants
of arrest until the submission of the reinvestigation report.
1

On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for reinvestigation alleging
therein that it is only the Supreme Court that may review the decisions, orders, rulings and resolutions of the COMELEC. This was denied in
an order dated April 5, 1990 whereby the respondent trial court upheld its jurisdiction over the subject matter.
2

Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised:
(a) Whether or not the respondent Court has the power or authority to order the Commission on Elections through its
Regional Election Director of Region VII or its Law Department to conduct a reinvestigation of Criminal Cases Nos. TCS-
1220 to TCS-1234;
(b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely usurped the functions of
the Honorable Supreme Court, the sole authority that has the power to review on certiorari, decisions, orders, resolutions
or instructions of the Commission on Elections; and
(c) Whether or not the respondent Court has the power or authority to order the Comelec Law Department to furnish said
respondent the records of preliminary investigation of the above criminal cases for purposes of determining a probable
cause.
3

The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its actions on election matters may
be reviewed only on certiorari by the Supreme Court.
4

On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public prosecutor, and not in the
exercise of its power to decide election contests, the trial court has authority to order a reinvestigation.
Section 2, Article IX-C of the Constitution provides:
SEC. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction or involving elective baranggay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the commission on election contests involving elective municipal and barangay offices
shall be final, executory, and not appealable
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the
number and location of polling places, appointment of election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government,
including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and
credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the Commission in addition to other penalties that may be
prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices,
and nuisance candidates.
(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite,
initiative, referendum, or recall. (Emphasis supplied.)
Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and functions of the COMELEC
as follows-
Sec. 52. Power and functions of the Commission on Elections.-In addition to the powers and functions conferred upon it by
the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to
the conduct of elections for the purpose of securing free, orderly and honest elections .... (Emphasis supplied.)
Section 7, Article IX-A of the Constitution reads thus
SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within
sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law any decision, order, of ruling or each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof. (Emphasis supplied.)
From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the COMELEC may be
classified in this manner
(1) Enforcement of election laws;
5

(2) Decision of election contests;
6

(3) Decision of administrative questions;
7

(4) Deputizing of law enforcement agencies;
8

(5) Registration of political parties;
9
and
(6) Improvement of elections.
10

As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or ruling of the COMELEC may
be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
In Filipinas Engineering and Machine Shop vs. Ferrer,
11
this Court held that "what is contemplated by the term final orders, rulings and
decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings
before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions
of the COMELEC on election contests or administrative questions brought before it are subject to judicial review only by this Court.
However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." Under Section 265 of the
Omnibus Election Code, the COMELEC, through its duly authorized legal officers, "have the exclusive power to conduct preliminary
investigation of all election offenses punishable under this Code, and to prosecute the same."
Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to try and decide any criminal
action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be
under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal
cases."
From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the adjudicatory or quasi-
judicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor
with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code
before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an
election offense and upon a prima facie finding of a probable cause, files the information in the proper court, said court thereby acquires
jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court.
12
The
COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court.
13

The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may
rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the
prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest. Nevertheless the court may require that
the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of
a warrant of arrest.
14

The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case
and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly
untenable.
One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can represent the People of
the Philippines in this proceeding.
15
In the least, the consent of the Office of the Solicitor General should have been secured by the
COMELEC before the filing of this petition. On this account alone, the petition should be dismissed.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.
Fernan, C.J. and Paras, J., are on leave.
G.R. No. 88919 July 25, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR
DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.:
Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the
Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine
whether or not probable cause exists?
On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the
Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal
Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law.
Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the
preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the
evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to
conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is
based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the
Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others:
xxx xxx xxx
Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary
investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or
informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election
Code. (Rollo, p. 15)
After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with
the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-Mayor.
In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail
at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.
However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside i ts September 30, 1988
order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987
Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the
Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis
supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging
the same offense with the written approval of the Provincial Fiscal.
Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A
motion for reconsideration was denied.
Hence, this petition.
The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to
determine the existence of probable cause in an election offense which it seeks to prosecute in court because:
While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of
the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to
prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under
the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may
be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)
The petition is impressed with merit.
We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election
Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable
cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the
Prosecutor's certification which are material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a
warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even
if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether or not there
is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to
the expense, rigors and embarrassment of trial is the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary
investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of
1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules,
1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1,
1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had
occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions,
namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job,
a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary
investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain
power is granted does not necessarily mean that it should be indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988
Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges
of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct
preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make apreliminary
examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or
search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every
judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people
against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he
retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying
the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale
of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be
judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient
ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of
arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context
that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding
election offenses.
Article IX C Section 2 of the Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate
and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election
frauds, offenses, and practices. (Emphasis supplied)
In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This
means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of
helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of
election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason.
The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest
conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle
ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to
investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its
effectiveness in achieving this clear constitutional mandate.
From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit
nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear
election offenses committed by public officers in relation to their office as contradistinguished from the clear and
categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections
182 and 184, respectively, of the Election Code of 1978.
An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in
the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether
private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is
committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of
the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with
the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281
[1987])
Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information
charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do
so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).itc-asl In the instant case, there
is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to
"approve" the COMELEC's preliminary investigation.
It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134
which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11
thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary
investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same:
Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the
complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation
and prosecution, if warranted.
The Commission may avail of the assistance of other prosecuting arms of the government.
It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987
Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court,
the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest.
Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed
the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to
enforce its September 30, 1988 order, to wit:
Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a
personal examination of the evidence submitted by the investigating Provincial Election Supervisor III Negros Oriental
(Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election
Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail
at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.
The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.
WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988
are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is
ordered to proceed hearing the case with deliberate speed until its termination.
SO ORDERED.