Reviewer on Public Officers by Atty.

Edwin Sandoval
Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or

selecting by one having the authority therefor of an individual to discharge and
perform the duties and functions of an office or trust. The appointment is deemed
complete once the last act required of the appointing authority has been complied
with and its acceptance thereafter by the appointee in order to render it effective.
Appointment necessarily calls for an exercise of discretion on the part of the
appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court, reiterated in Flores v. Drilon, this Court has 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 x x x.

Indeed, it may rightly be said that the right of choice is the heart of the power to
appoint. In the exercise of the power of appointment, discretion is an integral
thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug])

May the Civil Service Commission, or the Supreme Court, validly nullify an
appointment on the ground that somebody else is better qualified?

Held: The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the office.
Appointment is an essentially discretionary power and must be performed by the
officer vested with such power 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. Indeed, this is a prerogative of the
appointing authority which he alone can decide. The choice of an appointee from
among those who possess the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience, utility
and the interests of the service which can best be made by the head of the office
concerned, the person most familiar with the organizational structure and
environmental circumstances within which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no choice but
to attest to and respect the appointment even if it be proved that there are others
with superior credentials. The law limits the Commissions authority only to
whether or not the appointees possess the legal qualifications and the appropriate
civil service eligibility, nothing else. If they do then the appointments are approved
because the Commission cannot exceed its power by substituting its will for that of
the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May
29, 1995, En Banc [Bellosillo, J.])

Does the next-in-rank rule import any mandatory or peremptory requirement that
the person next-in-rank must be appointed to the vacancy?

Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a
process which denotes a scalar ascent of an officer to another position higher either
in rank or salary. And even in promotions, it can be disregarded for sound reasons
made known to the next-in-rank, as the concept does not import any mandatory or
peremptory requirement that the person next-in-rank must be appointed to the
vacancy. The appointing authority, under the Civil Service Law, is allowed to fill
vacancies by promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have appropriate civil service
eligibility, not necessarily in that order. There is no legal fiat that a vacancy must
be filled only by promotion; the appointing authority is given wide discretion to fill a
vacancy from among the several alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the
person holding the position next in rank thereto shall be considered for promotion.

In Taduran v. Civil Service Commission, the Court construed that phrase to mean
that the person next-in-rank would be among the first to be considered for the
vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission, the Court
elaborated the import of the rule in the following manner:

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 x x x (Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc
[Feliciano])

Can a person who lacks the necessary qualifications for a public position be
appointed to it in a permanent capacity? Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry Legal
Counsel-CESO IV is embraced in the Career Executive Service. X x x

In the case at bar, there is no question that private respondent does not
have the required CES eligibility.
As admitted by private respondent in his
Comment, he is not a CESO or a member of the Career Executive Service.

In the case of Achacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who

meets all the requirements for the position to which he s 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.

The Court, having considered these submissions and the additional arguments of
the parties in the petitioners Reply and of the Solicitor-Generals Rejoinder, must
find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure in 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,
only 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.

Evidently, private respondents appointment did not attain permanency.

Not having taken the necessary Career Executive Service examination to obtain the
requisite eligibility, he did not at the time of his appointment and up to the present,
possess the needed eligibility for a position in the Career Executive Service.
Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal
Counsel and/or Director III, was merely temporary. Such being the case, he could be
transferred or reassigned without violating the constitutionally guaranteed right to
security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly

contending that the mobility and flexibility concepts in the assignment of
personnels under the Career Executive Service do not apply to him because he s not
a Career Executive Service Officer. Obviously, the contention is without merit. As
correctly pointed out by the Solicitor General, non-eligibles holding permanent
appointments to CES positions were never meant to remain immobile in their status.
Otherwise, their lack of eligibility would be a premium vesting them with
permanency in the CES positions, a privilege even their eligible counterparts do not
enjoy.

Then too, the cases on unconsented transfer invoked by private

respondent find no application in the present case.
To reiterate, private
respondents appointment is merely temporary; hence, he could be transferred or
reassigned to other positions without violating his right to security of tenure. (De
Leon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])

In the career executive service, is a career executive service (CES)

eligibility all that an employee needs to acquire security of tenure? Is
appointment to a CES rank necessary for the acquisition of such security
of tenure?

Held: In the career executive service, the acquisition of security of tenure

which presupposes a permanent appointment is governed by the rules and
regulations promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two requisites must concur in order
that an employee in the career executive service may attain security of tenure, to
wit:

CES eligibility; and

Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the

career executive service (except first and second level employees in the civil
service), pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of
salary even if assigned to a CES position with lower salary grade, as he is
compensated according to his CES rank and not on the basis of the position or office
he occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though a
CES eligible, does not possess the appropriate CES rank, which is CES rank level V,
for the position of Regional Director of the LTO (Region V). Falling short of one of the
qualifications that would complete his membership in the CES, respondent cannot
successfully interpose violation of security of tenure. Accordingly, he could be
validly reassigned to other positions in the career executive service. x x x

Moreover, under the mobility and flexibility principles of the Integrated

Reorganization Plan, CES personnel may be reassigned or transferred from one
position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M.
General is not a CES eligible. The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated
Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he qualified in such examination.

Evidently, the law allows appointment of those who are not CES eligible, subject to
the obtention of said eligibility, in the same manner that the appointment of
respondent who does not possess the required CES rank (CES rank level V) for the
position of Regional Director of the LTO, is permitted in a temporary capacity.
(General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-Santiago])

How are positions in

characteristics of each.

the

Civil

Service

classified?

Discuss

the

Ans.: Positions in the Civil Service may be classified into: 1) Career

Positions, and 2) Non-Career Positions.

Career Positions are characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination, or based on highly
technical qualifications; (2) opportunity for advancement to higher career positions;
and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other than
of the usual tests of merit or fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or which is limited to the duration of
a particular project for which purpose employment was made (Sec. 9, Chap. 2,
Subtitle A, Title I, Bk. V, E.O. No. 292).

What is a primarily confidential position? What is the test to determine

whether a position is primarily confidential or not?

Held: A primarily confidential position is one which denotes not only confidence in
the aptitude of the appointee for the duties of the office but primarily close intimacy
which ensures freedom from intercourse without embarrassment or freedom from
misgivings or betrayals of personal trust or confidential matters of state. (De los
Santos v. Mallare, 87 Phil. 289 [1950])

Under the proximity rule, the occupant of a particular position could be

considered a confidential employee if the predominant reason why he was chosen
by the appointing authority was the latters belief that he can share a close intimate
relationship with the occupant which ensures freedom of discussion without fear or
embarrassment or misgivings of possible betrayal of personal trust or confidential
matters of state. Withal, where the position occupied is more remote from that of
the appointing authority, the element of trust between them is no longer
predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

Does the Civil Service Law contemplate a review of decisions exonerating

officers or employees from administrative charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence
that the phrase party adversely affected by the decision refers to the government

employee against whom the administrative case is filed for the purpose of
disciplinary action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office and not included are cases
where the penalty imposed is suspension for not more than thirty (30) days or fine
in an amount not exceeding thirty days salary (Paredes v. Civil Service
Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges,
there is no occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA
965, 968) In other words, we overrule prior decisions holding that the Civil Service
Law does not contemplate a review of decisions exonerating officers or employees
from administrative charges enunciated in Paredes v. Civil Service Commission
(192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v.
Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and
Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v.
Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No.
135805, April 29, 1999, En Banc [Pardo]

What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation,
preventive suspension is not a penalty in itself. It is merely a measure of precaution
so that the employee who is charged may be separated, for obvious reasons, from
the scene of his alleged misfeasance while the same is being investigated. Thus
preventive suspension is distinct from the administrative penalty of removal from
office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may
be imposed on a respondent during the investigation of the charges against him,
the latter is the penalty which may only be meted upon him at the termination of
the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689,
March 31, 1992 [Romero])

Discuss the kinds of preventive suspension under the Civil Service Law.
When may a civil service employee placed under preventive suspension be
entitled to compensation?
Held:
There are two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or suspension: (1)
preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No.
292) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the respondent is
exonerated (Section 47, par. 4, Civil Service Law, EO No. 292).
Preventive suspension pending investigation is not a penalty. It is a measure
intended to enable the disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent is found innocent of
the charges and is exonerated, he should be reinstated. However, no compensation
was due for the period of preventive suspension pending investigation. The Civil
Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once
the respondent was exonerated was revised in 1975 and the provision on the
payment of salaries during suspension was deleted.
But although it is held that employees who are preventively suspended
pending investigation are not entitled to the payment of their salaries even if they

are exonerated, they are entitled to compensation for the period of their suspension
pending appeal if eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a
means of enabling the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension pending appeal is actually
punitive although it is in effect subsequently considered illegal if respondent is
exonerated and the administrative decision finding him guilty is reversed. Hence,
he should be reinstated with full pay for the period of the suspension. (Gloria v. CA,
G.R. No. 131012, April 21, 1999, En Banc [Mendoza])
Discuss
the
power
of
Ombudsman
to
conduct
investigations, and to impose preventive suspension.

administrative

Held: Worth stressing, to resolve the present controversy, we must recall that
the authority of the Ombudsman to conduct administrative investigations is
mandated by no less than the Constitution.
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman
the statutory power to conduct administrative investigations. x x x
Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary
authority x x x.
Petitioner is an elective local official accused of grave misconduct and
dishonesty. That the Office of the Ombudsman may conduct an administrative
investigation into the acts complained of, appears clear from the foregoing
provisions of R.A. 6770.
However, the question of whether or not the Ombudsman may conduct an
investigation over a particular act or omission is different from the question of
whether or not petitioner, after investigation, may be held administratively liable.
This distinction ought here to be kept in mind even as we must also take note that
the power to investigate is distinct from the power to suspend preventively an
erring public officer.
Likewise worthy of note, the power of the Office of the Ombudsman to
preventively suspend an official subject to its administrative investigation is
provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the
Ombudsman can preventively suspend all officials under investigation by his office,
regardless of the branch of government in which they are employed, excepting of
course those removable by impeachment, members of Congress and the Judiciary.
The power to preventively suspend is available not only to the Ombudsman
but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A.
6770 abovecited.
There can be no question in this case as to the power and authority of
respondent Deputy Ombudsman to issue an order of preventive suspension against
an official like the petitioner, to prevent that official from using his office to
intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21,
1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the
prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495,
December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy
simply boils down to this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did respondent Deputy Ombudsman
commit a grave abuse of discretion when he set the period of preventive suspension
at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among
other factors, the evidence of guilt is strong. The period for which an official may be
preventively suspended must not exceed six months. In this case, petitioner was
preventively suspended and ordered to cease and desist from holding office for the
entire period of six months, which is the maximum provided by law.

The determination of whether or not the evidence of guilt is strong as to warrant

preventive suspension rests with the Ombudsman. The discretion as regards the
period of such suspension also necessarily belongs to the Ombudsman, except that
he cannot extend the period of suspension beyond that provided by law. But, in our
view, both the strength of the evidence to warrant said suspension and the
propriety of the length or period of suspension imposed on petitioner are properly
raised in this petition for certiorari and prohibition. X x x

Given these findings, we cannot say now that there is no evidence sufficiently
strong to justify the imposition of preventive suspension against petitioner. But
considering its purpose and the circumstances in the case brought before us, it does
appear to us that the imposition of the maximum period of six months is
unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even
without conceding that initially it was weak, it is clear to us that the maximum sixmonth period is excessive and definitely longer than necessary for the Ombudsman
to make its legitimate case against petitioner. We must conclude that the period
during which petitioner was already preventively suspended, has been sufficient for
the lawful purpose of preventing petitioner from hiding and destroying needed
documents, or harassing and preventing witnesses who wish to appear against him.
(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])

Distinguish preventive suspension under the Local Government Code from

preventive suspension under the Ombudsman Act.
Held: We reach the foregoing conclusion, however, without necessarily
subscribing to petitioners claim that the Local Government Code, which he averred
should apply to this case of an elective local official, has been violated. True, under
said Code, preventive suspension may only be imposed after the issues are joined,
and only for a maximum period of sixty days. Here, petitioner was suspended
without having had the chance to refute first the charges against him, and for the
maximum period of six months provided by the Ombudsman Law.
But as
respondents argue, administrative complaints commenced under the Ombudsman
Law are distinct from those initiated under the Local Government Code.
Respondents point out that the shorter period of suspension under the Local
Government Code is intended to limit the period of suspension that may be imposed
by a mayor, a governor, or the President, who may be motivated by partisan
political considerations. In contrast the Ombudsman, who can impose a longer
period of preventive suspension, is not likely to be similarly motivated because it is
a constitutional body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive
suspension.

Respondents may be correct in pointing out the reason for the shorter
period of preventive suspension imposable under the Local Government Code.
Political color could taint the exercise of the power to suspend local officials by the
mayor, governor, or Presidents office. In contrast the Ombudsman, considering the
constitutional origin of his Office, always ought to be insulated from the vagaries of
politics, as respondents would have us believe.

In Hagad v. Gozo-Dadole, on the matter of whether or not the

Ombudsman has been stripped of his power to investigate local elective officials by
virtue of the Local Government Code, we said:

Indeed, there is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike
down the other.

It was also argued in Hagad, that the six-month preventive suspension

under the Ombudsman Law is much too repugnant to the 60-day period that may
be imposed under the Local Government Code. But per J. Vitug, the two provisions
govern differently.

However, petitioner now contends that Hagad did not settle the question
of whether a local elective official may be preventively suspended even before the
issues could be joined. Indeed it did not, but we have held in other cases that there
could be preventive suspension even before the charges against the official are
heard, or before the official is given an opportunity to prove his innocence.
Preventive suspension is merely a preliminary step in an administrative
investigation and is not in any way the final determination of the guilt of the official
concerned.

Petitioner also avers that the suspension order against him was issued in
violation of Section 26[2] of the Ombudsman Law x x x.

Petitioner argues that before an inquiry may be converted into a fullblown administrative investigation, the official concerned must be given 72 hours to
answer the charges against him. In his case, petitioner says the inquiry was
converted into an administrative investigation without him being given the required
number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72
hours to submit a written answer to the complaint against him. This, however, does
not make invalid the preventive suspension order issued against him. As we have
earlier stated, a preventive suspension order may be issued even before the
charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his
counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day

period is in keeping with Section 5[a] of the Rules of Procedure of the Office of the
Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div.
[Quisumbing])

Does Section 13, Republic Act No. 3019 exclude from its coverage the members of
Congress and, therefore, the Sandiganbayan erred in decreeing the preventive
suspension order against Senator Miriam Defensor-Santiago? Will the order of
suspension prescribed by Republic Act No. 3019 not encroach on the power of
Congress to discipline its own ranks under the Constitution?

Held: The petition assails the authority of the Sandiganbayan to decree a

ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of
the Republic of the Philippines, from any government position, and furnishing a copy
thereof to the Senate of the Philippines for the implementation of the suspension
order.

The authority of the Sandiganbayan to order the preventive suspension of

an incumbent public official charged with violation of the provisions of Republic Act
No. 3019 has both legal and jurisprudential support. X x x

In the relatively recent case of Segovia v. Sandiganbayan, the Court

reiterated:

The validity of Section 13, R.A. 3019, as amended treating of the suspension
pendente lite of an accused public officer may no longer be put at issue, having
been repeatedly upheld by this Court.

The provision of suspension pendente lite applies to all persons indicted upon a
valid information under the Act, whether they be appointive or elective officials; or
permanent or temporary employees, or pertaining to the career or non-career
service. (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an

order of suspension upon determination of the validity of the information filed
before it. Once the information is found to be sufficient in form and substance, the
court is bound to issue an order of suspension as a matter of course, and there
seems to be no ifs and buts about it. Explaining the nature of the preventive
suspension, the Court in the case of Bayot v. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a result of judicial

proceedings. In fact, if acquitted, the official concerned shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during
suspension.

In issuing the preventive suspension of petitioner, the Sandiganbayan

merely adhered to the clear and unequivocal mandate of the law, as well as the

jurisprudence in which the Court has, more than once, upheld Sandiganbayans
authority to decree the suspension of public officials and employees indicted before
it.

Section 13 of Republic Act No. 3019 does not state that the public officer
concerned must be suspended only in the office where he is alleged to have
committed the acts with which he has been charged. Thus, it has been held that
the use of the word office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular office under which he
stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

En passant, while the imposition of suspension is not automatic or selfoperative as the validity of the information must be determined in a pre-suspension
hearing, there is no hard and fast rule as to the conduct thereof. It has been said
that

x x x No specific rules need be laid down for such pre-suspension hearing. Suffice
it to state that the accused should be given a fair and adequate opportunity to
challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he
has not been afforded the right of due preliminary investigation; that the acts for
which he stands charged do not constitute a violation of the provisions of Republic
Act 3019 or the bribery provisions of the Revised Penal Code which would warrant
his mandatory suspension from office under Section 13 of the Act; or he may
present a motion to quash the information on any of the grounds provided for in
Rule 117 of the Rules of Court x x x.

Likewise, he is accorded the right to challenge the propriety of

his prosecution on the ground that the acts for which he is charged do not
constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised
Penal Code, and the right to present a motion to quash the information on any other
grounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that
the acts for which the accused is charged do not constitute a violation of the
provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal
Code, should be treated only in the same manner as a challenge to the criminal
proceeding by way of a motion to quash on the ground provided in Paragraph (a),
Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of the challenge to the validity of
the criminal proceeding, on such ground, should be limited to an inquiry whether
the facts alleged in the information, if hypothetically admitted, constitute the
elements of an offense punishable under Rep. Act 3019 or the provisions on bribery
of the Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v.
Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must be established
in a pre-suspension proceeding before trial on the merits proceeds. Neither does it
contemplate a proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or pose a threat to the safety

and integrity of the records and other evidence before the court could have a valid
basis in decreeing preventive suspension pending the trial of the case. All it secures
to the accused is adequate opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been afforded the right to due
preliminary investigation, that the acts imputed to him do not constitute a specific
crime warranting his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of the grounds set
out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure.

The pronouncement, upholding the validity of the information filed

against petitioner, behooved Sandiganbayan to discharge its mandated duty to
forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct

from the power of Congress to discipline its own ranks under the Constitution which
provides that each

x x x house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a

punitive measure that is imposed upon determination by the Senate or the House of
Representatives, as the case may be, upon an erring member. Thus, in its
resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al., the Court
affirmed the order of suspension of Congressman Paredes by the Sandiganbayan,
despite his protestations on the encroachment by the court on the prerogatives of
Congress. The Court ruled:

x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which

deals with the power of each House of Congress inter alia to punish its Members for
disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all
its Members subject to the qualification that the penalty of suspension, when
imposed, should not exceed sixty days in unavailing, as it appears to be quite
distinct from the suspension spoken of in Section 13 of RA 3019, which is not a
penalty but a preliminary, preventive measure, prescinding from the fact that the
latter is not being imposed on petitioner for misbehavior as a Member of the House
of Representatives.

The doctrine of separation of powers by itself may not be deemed to have

effectively excluded Members of Congress from Republic Act No. 3019 nor from its
sanctions.
The maxim simply recognizes each of the three co-equal and
independent, albeit coordinate, branches of the government the Legislative, the
Executive and the Judiciary has exclusive prerogatives and cognizance within its
own sphere of influence and effectively prevents one branch from unduly intruding
into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the

1987 Constitution, empowers the Court to act not only in the settlement of actual
controversies involving rights which are legally demandable and enforceable, but
also in the determination of whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. The provision allowing the Court to look into
any possible grave abuse of discretion committed by any government
instrumentality has evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging milieu. In its normal
concept, the term has been said to imply an arbitrary, despotic, capricious or
whimsical exercise of judgment amounting to lack or excess of jurisdiction. When
the question, however, pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view that unless an infringement of any
specific Constitutional proscription thereby inheres the Court should not deign
substitute its own judgment over that of any of the other two branches of
government. It is an impairment or a clear disregard of a specific constitutional
precept or provision that can unbolt the steel door for judicial intervention. If any
part of the Constitution is not, or ceases to be, responsive to contemporary needs, it
is the people, not the Court, who must promptly react in the manner prescribed by
the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress
and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed
preventive suspension order.

Attention might be called to the fact that Criminal Case No. 16698 has been decided
by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein
petitioner. The Court, nevertheless, deems it appropriate to render this decision for
future guidance on the significant issue raised by petitioner.
(Santiago v.
Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly appointed or designated to any public office
or position during his tenure?

Ans.: No elective official shall be eligible for appointment or designation

in any capacity to any public office or position during his tenure. (Sec. 7, 1st par.,
Art. IX-B, 1987 Constitution)

May an appointive public official hold any other office or employment?

Ans.: Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation. (Sec. 7, 2nd par., Art. IX-B, 1987
Constitution)

May the President, Vice-President, Members of the Cabinet, their deputies or

assistants hold any other office or employment?

Ans.: The President, Vice-President, the Members of the Cabinet, and

their deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. (Sec. 13, Art. VII, 1987
Constitution)

Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7, par. (2), Article
IX-B?

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

We rule in the negative.

The practice of designating members of the Cabinet, their deputies and

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

This practice of holding multiple offices or positions in the government

soon led to abuses by unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the peoples sense of propriety and

morality in government service were the data contained therein that Roberto v.
Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23);
Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of
thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each; Manuel P.

Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia
Bautista and Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes
of discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices and employment.
Xxx

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

Evidently, from this move as well as in the different phraseologies of the

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

Moreover, such intent is underscored by a comparison of Section 13,

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

It is quite notable that in all these provisions on disqualifications to hold

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

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

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

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

Moreover, respondents reading of the provisions in question would render

certain parts of the Constitution inoperative. This observation applies particularly to
the Vice-President who, under Section 13 of Article VII is allowed to hold other office
or employment when so authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for
appointment or designation in any capacity to any public office or position during
his tenure. Surely, to say that the phrase unless otherwise provided in this
Constitution found in Section 13, Article VII has reference to Section 7, par. (1) of
Article IX-B would render meaningless the specific provisions of the Constitution
authorizing the Vice-President to become a member of the Cabinet (Sec. 3, Ibid.),
and to act as President without relinquishing the Vice-Presidency where the
President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such
absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general
rule and the other, i.e., Section 13, Article VII as constituting the exception thereto.

In the same manner must Section 7, par. (2) of Article IX-B be construed vis--vis
Section 13, Article VII.

Since the evident purpose of the framers of the 1987 Constitution is to

impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of Section 13, Article VII
is prohibitory so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple government offices and
employment. Verily, wherever the language used in the constitution is prohibitory,
it is to be understood as intended to be a positive and unequivocal negation (Varney
v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The
phrase unless otherwise provided in this Constitution must be given a literal
interpretation to refer only to those particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being exofficio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

It being clear x x x that the 1987 Constitution seeks to prohibit the

President, Vice-President, members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in the government,
except in those cases specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of their office, the citation
of Cabinet members (then called Ministers) as examples during the debate and
deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the constitutions
manifest intent and the peoples understanding thereof.

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

The Court is alerted by respondents to the impractical consequences that

will result from a strict application of the prohibition mandated under Section 13,
Article VII on the operations of the Government, considering that Cabinet members
would be stripped of their offices held in an ex-officio capacity, by reason of their
primary positions or by virtue of legislation. As earlier clarified in this decision, exofficio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his
office do not fall under the definition of any other office within the contemplation
of the constitutional prohibition. With respect to other offices or employment held
by virtue of legislation, including chairmanships or directorships in governmentowned or controlled corporations and their subsidiaries, suffice it to say that the
feared impractical consequences are more apparent than real. Being head of an

executive department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits are to
be derived from a department heads ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions and responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be derived
from this concentration of attention, knowledge and expertise, particularly at this
stage of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court

hereby orders respondents x x x to immediately relinquish their other offices or
employment, as herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. (Civil Liberties Union v. Executive
Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])
Does the prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution apply to posts occupied by the Executive
officials specified therein without additional compensation in an ex-officio capacity
as provided by law and as required by the primary functions of said officials office?

Held: The prohibition against holding dual or multiple offices or

employment under Section 13, Article VII of the Constitution must not, however, be
construed as applying to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law and as
required (As opposed to the term allowed used in Section 7, par. (2), Article IX-B of
the Constitution, which is permissive. Required suggests an imposition, and
therefore, obligatory in nature) by the primary functions of said officials office. The
reason is that these posts do not comprise any other office within the
contemplation of the constitutional prohibition but are properly an imposition of
additional duties and functions on said officials. To characterize these posts
otherwise would lead to absurd consequences, among which are: The President of
the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115. Neither can the Vice-President, the Executive Secretary,
and the Secretaries of National Defense, Justice, Labor and Employment and Local
Government sit in this Council, which would then have no reason to exist for lack of
a chairperson and members.
The respective undersecretaries and assistant
secretaries, would also be prohibited.

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

To reiterate, the prohibition under Section 13, Article VII is not to be

interpreted as covering positions held without additional compensation in ex-officio
capacities as provided by law and as required by the primary functions of the
concerned officials office. The term ex-officio means from office; by virtue of
office. It refers to an authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed to the official

position. Ex officio likewise denotes an act done in an official character, or as a

consequence of office, and without any other appointment or authority than that
conferred by the office. An ex-officio member of a board is one who is a member
by virtue of his title to a certain office, and without further warrant or appointment.
To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports
Authority (Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210).

The Court had occasion to explain the meaning of an ex-officio position in

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

The term primary used to describe functions refers to the order of

importance and thus means chief or principal function. The term is not restricted to
the singular but may refer to the plural (33A Words and Phrases, p. 210). The
additional duties must not only be closely related to, but must be required by the
officials primary functions. Examples of designations to positions by virtue of ones
primary functions are the Secretaries of Finance and Budget sitting as members of
the Monetary Board, and the Secretary of Transportation and Communications
acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics
Board.

If the functions to be performed are merely incidental, remotely related,

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

Mandating additional duties and functions to the President, VicePresident, Cabinet Members, their deputies or assistants which are not inconsistent
with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a
practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious tasks of
executing and implementing laws affecting national interest and general welfare
and delivering basic services to the people. It is consistent with the power vested
on the President and his alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure that the laws are

faithfully executed. Without these additional duties and functions being assigned to
the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by
law and as required by their primary functions, they would be deprived of the
means for control and supervision, thereby resulting in an unwieldy and confused
bureaucracy.

It bears repeating though that in order that such additional duties or

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

The ex-officio position being actually and in legal contemplation part of

the principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his principal
office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the form of a per diem or an
honorarium or an allowance, or some other such euphemism. By whatever name it
is designated, such additional compensation is prohibited by the Constitution. (Civil
Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc
[Fernan, CJ])

Should members of the Cabinet appointed to other positions in the government

pursuant to Executive Order No. 284 which later was declared unconstitutional by
the SC for being violative of Section 13, Article VII of the Constitution be made to
reimburse the government for whatever pay and emoluments they received from
holding such other positions?

Held: During their tenure in the questioned positions, respondents may

be considered de facto officers and as such entitled to emoluments for actual
services rendered. It has been held that in cases where there is no de jure officer,
a de facto officer, who, in good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for
such services. Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may
therefore be retained by them. (Civil Liberties Union v. Executive Secretary, 194
SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may 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, during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or the emoluments thereof
increased during the term for which he was elected. (Sec. 13, Art. VI, 1987
Constitution).

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment

is issued in favor of a relative within the third civil degree of consanguinity or
affinity of any of the following:

a)

appointing authority;

b)

recommending authority;

c)

chief of the bureau or office; and

d)

person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is
immaterial who the appointing or recommending authority is. To constitute a
violation of the law, it suffices that an appointment is extended or issued in favor of
a relative within the third civil degree of consanguinity or affinity of the chief of the
bureau or office, or the person exercising immediate supervision over the
appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc
[Pardo])

What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d)
members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable to the case of a

member of any family who, after his or her appointment to any position in an office
or bureau, contracts marriage with someone in the same office or bureau, in which
event the employment or retention therein of both husband and wife may be
allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

What is the doctrine of forgiveness or condonation?

criminal cases?

Does it apply to pending

Held: 1. A public official cannot be removed for administrative misconduct

committed during a prior term, since his re-election to office operates as a
condonation of the officers previous misconduct to the extent of cutting off the
right to remove him therefor. The foregoing rule, however, finds no application to
criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773
[1992])

2. A reelected local official may not be held administratively accountable for

misconduct committed during his prior term of office. The rationale for this holding
is that when the electorate put him back into office, it is presumed that it did so
with full knowledge of his life and character, including his past misconduct. If,
armed with such knowledge, it still reelects him, then such reelection is considered
a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica,
et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection
has rendered the administrative case filed against him moot and academic. This is
because his reelection operates as a condonation by the electorate of the
misconduct committed by an elective official during his previous term. Petitioner
further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva
Ecija, citing Conant v. Brogan, that

x x x When the people have elected a man to office, it must be assumed that they
did this with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. It is not for the court,
by reason of such faults or misconduct to practically overrule the will of the people.

Respondents, on the other hand, contend that while the contract in question was
signed during the previous term of petitioner, it was to commence or be effective
only on September 1998 or during his current term. It is the respondents
submission that petitioner went beyond the protective confines of jurisprudence

when he agreed to extend his act to his current term of office. Aguinaldo cannot
apply, according to respondents, because what is involved in this case is a
misconduct committed during a previous term but to be effective during the current
term.

Respondents maintain that,

x x x petitioner performed two acts with respect to the contract: he provided for a
suspensive period making the supply contract commence or be effective during his
succeeding or current term and during his current term of office he acceded to the
suspensive period making the contract effective during his current term by causing
the implementation of the contract.

Hence, petitioner cannot take refuge in the fact of his reelection,

according to respondents.

Further, respondents point out that the contract in question was signed
just four days before the date of the 1998 election and so it could not be presumed
that when the people of Cebu City voted petitioner to office, they did so with full
knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials previous

acts is presumed and the court need not inquire whether, in reelecting him, the
electorate was actually aware of his prior misdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved

Albay governor Ramon R. Salalima of his administrative liability as regards a
retainer agreement he signed in favor of a law firm during his previous term,
although disbursements of public funds to cover payments under the agreement
were still being done during his subsequent term. Petitioner argues that, following
Salalima, the doctrine of Aguinaldo applies even where the effects of the acts
complained of are still evident during the subsequent term of the reelected official.
The implementation of the contract is a mere incident of its execution. Besides,
according to petitioner, the sole act for which he has been administratively
charged is the signing of the contract with F.E. Zuellig. The charge, in his view,
excludes the contracts execution or implementation, or any act subsequent to the
perfection of the contract.

In Salalima, we recall that the Solicitor General maintained that Aguinaldo

did not apply to that case because the administrative case against Governor Rodolfo
Aguinaldo of Cagayan was already pending when he filed his certificate of
candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the
Aguinaldo doctrine, even if the administrative case against Governor Salalima was
filed after his reelection.

We now come to the concluding inquiry. Granting that the Office of the
Ombudsman may investigate, for purposes provided for by law, the acts of
petitioner committed prior to his present term of office; and that it may preventively

suspend him for a reasonable period, can that office hold him administratively liable
for said acts?

In a number of cases, we have repeatedly held that a reelected local

official may not be held administratively accountable for misconduct committed
during his prior term of office. The rationale for this holding is that when the
electorate put him back into office, it is resumed that it did so with full knowledge of
his life and character, including his past misconduct.
If, armed with such
knowledge, it still reelects him, then such reelection is considered a condonation of
his past misdeeds.

However, in the present case, respondents point out that the contract
entered into by petitioner with F.E. Zuellig was signed just four days before the date
of the elections. It was not made an issue during the election, and so the electorate
could not be said to have voted for petitioner with knowledge of this particular
aspect of his life and character.

For his part, petitioner contends that the only conclusive determining
factor as regards the peoples thinking on the matter is an election. On this point
we agree with petitioner. That the people voted for an official with knowledge of his
character is presumed, precisely to eliminate the need to determine, in factual
terms, the extent of this knowledge. Such an undertaking will obviously be
impossible. Our rulings on the matter do not distinguish the precise timing or period
when the misconduct was committed, reckoned from the date of the officials
reelection, except that it must be prior to said date.

As held in Salalima,

The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are
concerned, is still a good law. Such a rule is not only founded on the theory that an
officials reelection expresses the sovereign will of the electorate to forgive or
condone any act or omission constituting a ground for administrative discipline
which was committed during his previous term. We may add that sound policy
dictates it. To rule otherwise would open the floodgates to exacerbating endless
partisan contests between the reelected official and his political enemies, who may
not stop to hound the former during his new term with administrative cases for acts
alleged to have been committed during his previous term. His second term may
thus be devoted to defending himself in the said cases to the detriment of public
service x x x.

The above ruling in Salalima applies to this case. Petitioner cannot anymore be held
administratively liable for an act done during his previous term, that is, his signing
of the contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime in

1990. Governor Salalima was reelected in 1992 and payments for the retainer
continued to be made during his succeeding term. This situation is no different
from the one in the present case, wherein deliveries of the asphalt under the

contract with F.E. Zuellig and the payments therefor were supposed to have
commenced on September 1998, during petitioners second term.

However, respondents argue that the contract, although signed on May 7,

1998, during petitioners prior term, is to be made effective only during his present
term.

We fail to see any difference to justify a valid distinction in the result. The
agreement between petitioner (representing Cebu City) and F.E. Zuellig was
perfected on the date the contract was signed, during petitioners prior term. At
that moment, petitioner already acceded to the terms of the contract, including
stipulations now alleged to be prejudicial to the city government. Thus, any
culpability petitioner may have in signing the contract already became extant on
the day the contract was signed. It hardly matters that the deliveries under the
contract are supposed to have been made months later.

While petitioner can no longer be held administratively liable for signing

the contract with F.E. Zuellig, however, this should not prejudice the filing of any
case other than administrative against petitioner. Our ruling in this case, may not
be taken to mean the total exoneration of petitioner for whatever wrongdoing, if
any, might have been committed in signing the subject contract. The ruling now is
limited to the question of whether or not he may be held administratively liable
therefor, and it is our considered view that he may not. (Garcia v. Mojica, 314 SCRA
207, Sept. 10, 1999, 2nd Div. [Quisumbing])

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 reappointment. Moreover,
petitioner maintains that a reassignment without her consent amounts to removal
from office without due process and therefore illegal.

Held: 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. X x x. 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 x x x indisputably show that she held her

Director IV position in the EID only in an acting or temporary capacity. Petitioner is
not a Career Executive Service (CES), 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.

tenure as Director IV. X x x

Obviously, petitioner does not enjoy security of

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. X x x

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

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. 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, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. X x x

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, 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. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

May the appointment of a person assuming a position in the civil service under a
completed appointment be validly recalled or revoked?

Held: It has been held that upon the issuance of an appointment and the
appointees assumption of the position in the civil service, he acquires a legal right
which cannot be taken away either by revocation of the appointment or by removal
except for cause and with previous notice and hearing. Moreover, it is well-settled
that the person assuming a position in the civil service under a completed
appointment acquires a legal, not just an equitable, right to the position. This right
is protected not only by statute, but by the Constitution as well, which right cannot
be taken away by either revocation of the appointment, or by removal, unless there
is valid cause to do so, provided that there is previous notice and hearing.

Petitioner admits that his very first official act upon assuming the position of town
mayor was to issue Office Order No. 95-01 which recalled the appointments of the
private respondents. There was no previous notice, much less a hearing accorded
to the latter. Clearly, it was petitioner who acted in undue haste to remove the
private respondents without regard for the simple requirements of due process of
law. While he argues that the appointing power has the sole authority to revoke
said appointments, there is no debate that he does not have blanket authority to do
so. Neither can he question the CSCs jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised

Administrative Code specifically provides that an appointment accepted by the
appointee cannot be withdrawn or revoked by the appointing authority and shall
remain in force and in effect until disapproved by the Commission. Thus, it is the
CSC that is authorized to recall an appointment initially approved, but only when
such appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall
take effect immediately upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his appointment by the Commission.
The appointment shall remain effective until disapproved by the Commission. In no
case shall an appointment take effect earlier than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds:

Non-compliance with the procedures/criteria provided in the agencys Merit

Promotion Plan;

Failure to pass through the agencys Selection/Promotion Board;

Violation of the existing collective agreement between management and employees

relative to promotion; or

Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on

the above-cited grounds. And yet, the only reason advanced by the petitioner to
justify the recall was that these were midnight appointments. The CSC correctly
ruled, however, that the constitutional prohibition on so-called midnight
appointments, specifically those made within two (2) months immediately prior to
the next presidential elections, applies only to the President or Acting President. (De
Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

Is a government employee who has been ordered arrested and detained for a nonbailable offense and for which he was suspended for his inability to report for work
until the termination of his case, still required to file a formal application for leave of
absence to ensure his reinstatement upon his acquittal and thus protect his security
of tenure? Concomitantly, will his prolonged absence from office for more than one
(1) year automatically justify his being dropped from the rolls without prior notice
despite his being allegedly placed under suspension by his employer until the
termination of his case, which finally resulted in his acquittal for lack of evidence?

Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City
Government of Makati City. With her meager income she was the lone provider for
her children. But her simple life was disrupted abruptly when she was arrested
without warrant and detained for more than three (3) years for a crime she did not
commit.
Throughout her ordeal she trusted the city government that the
suspension imposed on her was only until the final disposition of her case. As she
drew near her vindication she never did expect the worst to come to her. On the
third year of her detention the city government lifted her suspension, dropped her
from the rolls without prior notice and without her knowledge, much less gave her
an opportunity to forthwith correct the omission of an application for leave of
absence belatedly laid on her.

Upon her acquittal for lack of evidence and her release from detention
she was denied reinstatement to her position. She was forced to seek recourse in
the Civil Service Commission which ordered her immediate reinstatement with back
wages from 19 October 1994, the date when she presented herself for reassumption

of duties but was turned back by the city government, up to the time of her actual
reinstatement.

Plainly, the case of petitioner City Government of Makati City revolves

around a rotunda of doubt, a dilemma concerning the legal status and implications
of its suspension of private respondent Eusebia R. Galzote and the automatic leave
of absence espoused by the Civil Service Commission. Against this concern is the
punctilious adherence to technicality, the requirement that private respondent
should have filed an application for leave of absence in proper form. The instant
case is therefore a dispute between, at its worst, private respondents substantial
compliance with the standing rules, and the City Governments insistence that the
lowly clerk should have still gone through the formalities of applying for leave
despite her detention, of which petitioner had actual notice, and the suspension
order couched in simple language that she was being suspended until the final
disposition of her criminal case.

The meaning of suspension until the final disposition of her case is that
should her case be dismissed she should be reinstated to her position with payment
of back wages. She did not have to apply for leave of absence since she was
already suspended by her employer until her case would be terminated. We have
done justice to the workingman in the past; today we will do no less by resolving all
doubts in favor of the humble employee in faithful obeisance to the constitutional
mandate to afford full protection to labor (Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec.
18)

As may be gleaned from the pleadings of the parties, the issues are: (1)
whether private respondent Eusebia R. Galzote may be considered absent without
leave; (b) whether due process had been observed before she was dropped from the
rolls; and, (3) whether she may be deemed to have abandoned her position, hence,
not entitled to reinstatement with back salaries for not having filed a formal
application for leave. Encapsulated, the issues may be reduced to whether private
respondent may be considered absent without leave or whether she abandoned her
job as to justify being dropped from the service for not filing a formal application for
leave.

Petitioner would have private respondent declared on AWOL and faults

her for failing to file an application for leave of absence under Secs. 20 (Now Sec. 52
of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as
amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI, Leave of
Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC
Nos. 41, s. 1998 and 14, s. 1999) of the CSC Rules and rejects the CSCs ruling of an
automatic leave of absence for the period of her detention since the current Civil
Service Law and Rules do not contain any specific provision on automatic leave of
absence.

The Court believes that private respondent cannot be faulted for failing to
file prior to her detention an application for leave and obtain approval thereof. The
records clearly show that she had been advised three (3) days after her arrest, or on
9 September 1991, that petitioner City government of Makati City had placed her
under suspension until the final disposition of her criminal case. This act of
petitioner indubitably recognized private respondents predicament and thus
allowed her to forego reporting for work during the pendency of her criminal case

without the needless exercise of strict formalities. At the very least, this official
communication should be taken as an equivalent of a prior approved leave of
absence since it was her employer itself which placed her under suspension and
thus excused her from further formalities in applying for such leave. Moreover, the
arrangement bound the City Government to allow private respondent to return to
her work after the termination of her case, i.e., if acquitted of the criminal charge.
This pledge sufficiently served as legitimate reason for her to altogether dispense
with the formal application for leave; there was no reason to, as in fact it was not
required, since she was for all practical purposes incapacitated or disabled to do so.

Indeed, private respondent did not have the least intention to go on AWOL from her
post as Clerk III of petitioner, for AWOL means the employee leaving or abandoning
his post without justifiable reason and without notifying his employer. In the instant
case, private respondent had a valid reason for failing to report for work as she was
detained without bail. Hence, right after her release from detention, and when
finally able to do so, she presented herself to the Municipal Personnel Officer of
petitioner City Government to report for work. Certainly, had she been told that it
was still necessary for her to file an application for leave despite the 9 September
1991 assurance from petitioner, private respondent would have lost no time in filing
such piece of document. But the situation momentarily suspending her from work
persisted: petitioner City Government did not alter the modus vivendi with private
respondent and lulled her into believing that its commitment that her suspension
was only until the termination of her case was true and reliable. Under the
circumstances private respondent was in, prudence would have dictated petitioner,
more particularly the incumbent city executive, in patria potestas, to advise her that
it was still necessary although indeed unnecessary and a useless ceremony to
file such application despite the suspension order, before depriving her of her
legitimate right to return to her position. Patria potestas in piatate debet, non in
atrocitate, consistere. Paternal power should consist or be exercised in affection,
not in atrocity.

It is clear from the records that private respondent Galzote was arrested and
detained without a warrant on 6 September 1991 for which reason she and her coaccused were subjected immediately to inquest proceedings. This fact is evident
from the instant petition itself and its attachments x x x. Hence, her ordeal in jail
began on 6 September 1991 and ended only after her acquittal, thus leaving her no
time to attend to the formality of filing a leave of absence.

But petitioner City Government would unceremoniously set aside its 9

September 1991 suspension order claiming that it was superseded three (3) years
later by a memorandum dropping her from the rolls effective 21 January 1993 for
absence for more than one (1) year without official leave. Hence, the suspension
order was void since there was no pending administrative charge against private
respondent so that she was not excused from filing an application for leave.

We do not agree. In placing private respondent under suspension until

the final disposition of her criminal case, the Municipal Personnel Officer acted with
competence, so he presumably knew that his order of suspension was not akin to
either suspension as penalty or preventive suspension since there was no
administrative case against private respondent. As competence on the part of the
MPO is presumed, any error on his part should not prejudice private respondent, and
that what he had in mind was to consider her as being on leave of absence without
pay and their employer-employee relationship being merely suspended, not

severed, in the meantime. This construction of the order of suspension is actually

more consistent with logic as well as fairness and kindness to its author, the MPO.
Significantly, the idea of a suspended employer-employee relationship is widely
accepted in labor law to account for situations wherein laborers would have no work
to perform for causes not attributable to them. We find no basis for denying the
application of this principle to the instant case which also involves a lowly worker in
the public service.

Moreover, we certainly cannot nullify the City Governments order of

suspension, as we have no reason to do so, much less retroactively apply such
nullification to deprive private respondent of a compelling and valid reason for not
filing the leave application. For as we have held, a void act though in law a mere
scrap of paper nonetheless confers legitimacy upon past acts or omissions done in
reliance thereof. Consequently, the existence of a statute or executive order prior
to its being adjudged void is an operative fact to which legal consequences are
attached. It would indeed be ghastly unfair to prevent private respondent from
relying upon the order of suspension in lieu of a formal leave application.

At any rate, statements are, or should be, construed against the one
responsible for the confusion; otherwise stated, petitioner must assume full
responsibility for the consequences of its own act, hence, he should be made to
answer for the mix-up of private respondent as regards the leave application. At
the very least, it should be considered estopped from claiming that its order of
suspension is void or that it did not excuse private respondent from filing an
application for leave on account of her incarceration. It is a fact that she relied
upon this order, issued barely three (3) days from the date of her arrest, and
assumed that when the criminal case would be settled she could return to work
without need of any prior act. x x x

The holding of the Civil Service Commission that private respondent was on
automatic leave of absence during the period of her detention must be sustained.
The CSC is the constitutionally mandated central personnel agency of the
Government tasked to establish a career service and adopt measures to promote
morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the
civil service (Const., Art. IX-B, Sec. 3) and strengthen the merit and rewards
system, integrate all human resources development programs for all levels and
ranks, and institutionalize a management climate conducive to public
accountability. Besides, the Administrative Code of 1987 further empowers the CSC
to prescribe, amend, and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws, and for matters
concerning leaves of absence, the Code specifically vests the CSC to ordain

Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be
entitled to leave of absence, with or without pay, as may be provided by law and
the rules and regulations of the Civil Service Commission in the interest of the
service.

Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27

December 1991 entitled Rules Implementing Book V of Executive Order No. 292 and
Other Pertinent Civil Service Laws which it has several times amended through
memorandum circulars. It devotes Rule XVI to leaves of absence. Petitioner City
Government relies upon Secs. 20 and 35 to debunk the CSC ruling of an automatic

leave of absence. Significantly, these provisions have been amended so that Sec.
20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, of
Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC No. 41, s.
1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14,
s. 1999.

As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an
approved leave of absence to avoid being an AWOL. However, these provisions
cannot be interpreted as exclusive and referring only to one mode of securing the
approval of a leave of absence which would require an employee to apply for it,
formalities and all, before exceeding thirty (30) days of absence in order to avoid
from being dropped from the rolls. There are, after all, other means of seeking and
granting an approved leave of absence, one of which is the CSC recognized rule of
automatic leave of absence under specified circumstances. x x x

As properly noted, the CSC was only interpreting its own rules on leave of
absence and not a statutory provision (As a matter of fact, Sec. 60 of the
Administrative Code does not provide for any rule on leave of absence other than
that civil servants are entitled to leave of absence) in coming up with this uniform
rule. Undoubtedly, the CSC like any other agency has the power to interpret its own
rules and any phrase contained in them with its interpretation significantly
becoming part of the rules themselves. x x x

Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of Government Reorganization) and
RA 7160 (The Local Government Code of 1991), civil servants who are found
illegally dismissed or retrenched are entitled to full pay for the period of their
separation.

Our final point. An efficient and honest bureaucracy is never inconsistent

with the emphasis on and the recognition of the basic rights and privileges of our
civil servants or, for that matter, the constitutional mandates of the Civil Service
Commission. In fact only from an enlightened corps of government workers and an
effective CSC grows the professionalization of the bureaucracy.
Indeed the
government cannot be left in the lurch; but neither could we decree that
government personnel be separated from their jobs indiscriminately regardless of
fault. The fine line between these concerns may be difficult to clearly draw but if we
only exerted extra effort to rebel against the allure of legal over-simplification,
justice would have been done where it is truly due. (City Government of Makati City
v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc [Bellosillo])

What is abandonment of office? What are its essential elements?

Held: Abandonment of an office is the voluntary relinquishment of an office by the

holder, with the intention of terminating his possession and control thereof. In order
to constitute abandonment of an office, it must be total and under such
circumstances as clearly to indicate an absolute relinquishment. There must be a

complete abandonment of duties of such continuance that the law will infer a
relinquishment. Abandonment of duties is a voluntary act; it springs from and is
accompanied by deliberation and freedom of choice. There are, therefore, two
essential elements of abandonment: first, an intention to abandon and second, an
overt or external act by which the intention is carried into effect.

Generally speaking, a person holding a public office may abandon such office by
non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or
to exercise an office. However, non-performance of the duties of an office does not
constitute abandonment where such non-performance results from temporary
disability or from involuntary failure to perform. Abandonment may also result from
an acquiescence by the officer in his wrongful removal or discharge, for instance,
after a summary removal, an unreasonable delay by an officer illegally removed in
taking steps to vindicate his rights may constitute an abandonment of the office.
Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the
requirements of a statute which is afterwards declared unconstitutional, such a
surrender will not be deemed an abandonment and the officer may recover the
effect. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc
[Gonzaga-Reyes])

By accepting another position in the government during the pendency of a case

brought precisely to assail the constitutionality of his removal may a person be
deemed to have abandoned his claim for reinstatement?

Held: Although petitioners do not deny the appointment of Canonizado as Inspector

General, they maintain that Canonizados initiation and tenacious pursuance of the
present case would belie any intention to abandon his former office. Petitioners
assert that Canonizado should not be faulted for seeking gainful employment during
the pendency of this case. Furthermore, petitioners point out that from the time
Canonizado assumed office as Inspector General he never received the salary
pertaining to such position x x x.

By accepting the position of Inspector General during the pendency of the

present case brought precisely to assail the constitutionality of his removal from
the NAPOLCOM Canonizado cannot be deemed to have abandoned his claim for
reinstatement to the latter position. First of all, Canonizado did not voluntarily leave
his post as Commissioner, but was compelled to do so on the strength of Section 8
of RA 8551 .

In our decision of 25 January 2000, we struck down the abovequoted

provision for being violative of petitioners constitutionally guaranteed right to
security of tenure. Thus, Canonizado harbored no willful desire or intention to
abandon his official duties. In fact, Canonizado, together with petitioners x x x lost
no time disputing what they perceived to be an illegal removal; a few weeks after
RA 8551 took effect x x x petitioners instituted the current action x x x assailing the
constitutionality of certain provisions of said law. The removal of petitioners from
their positions by virtue of a constitutionally infirm act necessarily negates a finding

of voluntary relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb.

15, 2001, En Banc [Gonzaga-Reyes])

Distinguish term of office from tenure of the incumbent.

Held: In the law of public officers, there is a settled distinction between term and
tenure. [T]he term of an office must be distinguished from the tenure of the
incumbent. The term means the time during which the officer may claim to hold
office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent
actually holds the office. The term of office is not affected by the hold-over. The
tenure may be shorter than the term for reasons within or beyond the power of the
incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc
[Pardo])

Discuss the operation of the rotational plan insofar as the term of office of the
Chairman and Members of the Constitutional Commissions is concerned.

Held: In Republic v. Imperial, we said that the operation of the rotational plan
requires two conditions, both indispensable to its workability: (1) that the terms of
the first three (3) Commissioners should start on a common date, and (2) that any
vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term.

Consequently, the terms of the first Chairmen and Commissioners of the

Constitutional Commissions under the 1987 Constitution must start on a common
date, irrespective of the variations in the dates of appointments and qualifications
of the appointees, in order that the expiration of the first terms of seven, five and
three years should lead to the regular recurrence of the two-year interval between
the expiration of the terms.

Applying the foregoing conditions x x x, we rule that the appropriate starting point
of the terms of office of the first appointees to the Constitutional Commissions
under the 1987 Constitution must be on February 2, 1987, the date of the adoption
of the 1987 Constitution. In case of a belated appointment or qualification, the
interval between the start of the term and the actual qualification of the appointee
must be counted against the latter. (Thelma P. Gaminde v. COA, G.R. No. 140335,
Dec. 13, 2000, En Banc [Pardo])

What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that the
office has a fixed term and the incumbent is holding onto the succeeding term. It is
usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected
and qualified. Where this provision is found, the office does not become vacant
upon the expiration of the term if there is no successor elected and qualified to
assume it, but the present incumbent will carry over until his successor is elected
and qualified, even though it be beyond the term fixed by law.

Absent an express or implied constitutional or statutory provision to the contrary, an

officer is entitled to stay in office until his successor is appointed or chosen and has
qualified. The legislative intent of not allowing holdover must be clearly expressed
or at least implied in the legislative enactment, otherwise it is reasonable to assume
that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in
the strong presumption against a legislative intent to create, by statute, a condition
which may result in an executive or administrative office becoming, for any period
of time, wholly vacant or unoccupied by one lawfully authorized to exercise its
functions. This is founded on obvious considerations of public policy, for the
principle of holdover is specifically intended to prevent public convenience from
suffering because of a vacancy and to avoid a hiatus in the performance of
government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999,
2nd Div. [Bellosillo])

2. The rule is settled that unless holding over be expressly or impliedly prohibited,
the incumbent may continue to hold over until someone else is elected and
qualified to assume the office. This rule is demanded by the most obvious
requirements of public policy, for without it there must frequently be cases where,
from a failure to elect or a refusal or neglect to qualify, the office would be vacant
and the public service entirely suspended. Otherwise stated, the purpose is to
prevent a hiatus in the government pending the time when the successor may be
chosen and inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11,
1993, En Banc [Davide, Jr.])

What is resignation? What are the requisites of a valid resignation?

Held: 1. It is the act of giving up or the act of an officer by which he declines his
office and renounces the further right to use it. It is an expression of the incumbent
in some form, express or implied, of the intention to surrender, renounce, and
relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be:
(a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c)
an acceptance by the proper authority. The last one is required by reason of Article

238 of the Revised Penal Code. (Sangguniang Bayan of San Andres, Catanduanes v.
CA, 284 SCRA 276, Jan. 16, 1998)

2. Resignation x x x is a factual question and its elements are beyond quibble:

there must be an intent to resign and the intent must be coupled by acts of
relinquishment. The validity of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written. It can be express. It can
be implied. As long as the resignation is clear, it must be given legal effect.
(Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

What is abandonment of an office? What are its requisites? How is it distinguished

from resignation?

Held: Abandonment of an office has been defined as the voluntary relinquishment

of an office by the holder, with the intention of terminating his possession and
control thereof. Indeed, abandonment of office is a species of resignation; while
resignation in general is a formal relinquishment, abandonment is a voluntary
relinquishment through nonuser.

Abandonment springs from and is accompanied by deliberation and freedom of

choice. Its concomitant effect is that the former holder of an office can no longer
legally repossess it even by forcible reoccupancy.

Clear intention to abandon should be manifested by the officer concerned. Such

intention may be express or inferred from his own conduct. Thus, the failure to
perform the duties pertaining to the office must be with the officers actual or
imputed intention to abandon and relinquish the office. Abandonment of an office is
not wholly a matter of intention; it results from a complete abandonment of duties
of such continuance that the law will infer a relinquishment. Therefore, there are
two essential elements of abandonment; first, an intention to abandon and, second,
an overt or external act by which the intention is carried into effect.
(Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16,
1998)

What is the effect of acceptance of an incompatible office to a claim for

reinstatement?

Held: The next issue is whether Canonizados appointment to and acceptance of

the position of Inspector General should result in an abandonment of his claim for
reinstatement to the NAPOLCOM. It is a well-settled rule that he who, while
occupying one office, accepts another incompatible with the first, ipso facto vacates
the first office and his title is thereby terminated without any other act or

proceeding.
Public policy considerations dictate against allowing the same
individual to perform inconsistent and incompatible duties. The incompatibility
contemplated is not the mere physical impossibility of one persons performing the
duties of the two offices due to a lack of time or the inability to be in two places at
the same moment, but that which proceeds from the nature and relations of the two
positions to each other as to give rise to contrariety and antagonism should one
person attempt to faithfully and impartially discharge the duties of one toward the
incumbent of the other.

There is no question that the positions of NAPOLCOM Commissioner and

Inspector General of the IAS are incompatible with each other. As pointed out by
respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee
charged with the task of deliberating on the appointment, promotion, or assignment
of any PNP personnel, whereas the NAPOLCOM has the power of control and
supervision over the PNP. However, the rule on incompatibility of duties will not
apply to the case at bar because at no point did Canonizado discharge the functions
of the two offices simultaneously. Canonizado was forced out of his first office by
the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as
Inspector General x x x he had ceased to discharge his official functions as
NAPOLCOM Commissioner. x x x Thus, to reiterate, the incompatibility of duties
rule never had a chance to come into play for petitioner never occupied the two
positions, of Commissioner and Inspector General, nor discharged their respective
functions, concurrently.

As in the Tan v. Gimenez and Gonzales v. Hernandez cases, Canonizado was

compelled to leave his position as Commissioner, not by an erroneous decision, but
by an unconstitutional provision of law. Canonizado, like the petitioners in the
above mentioned cases, held a second office during the period that his appeal was
pending. As stated in the Comment filed by petitioners, Canonizado was impelled
to accept this subsequent position by a desire to continue serving the country, in
whatever capacity. Surely, this selfless and noble aspiration deserves to be placed
on at least equal footing with the worthy goal of providing for oneself and ones
family, either of which are sufficient to justify Canonizados acceptance of the
position of Inspector General. A Contrary ruling would deprive petitioner of his right
to live, which contemplates not only a right to earn a living, as held in previous
cases, but also a right to lead a useful and productive life. Furthermore, prohibiting
Canonizado from accepting a second position during the pendency of his petition
would be to unjustly compel him to bear the consequences of an unconstitutional
act which under no circumstance can be attributed to him. However, before
Canonizado can re-assume his post as Commissioner, he should first resign as
Inspector General of the IAS-PNP. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15,
2001, En Banc [Gonzaga-Reyes])

When may unconsented transfers be considered anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez:

x x x the rule that outlaws unconsented transfers as anathema to security of

tenure applies only to an officer who is appointed not merely assigned to a
particular station. Such a rule does not pr[o]scribe a transfer carried out under a
specific statute that empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the agency. x x x

The guarantee of security of tenure under the Constitution is not a guarantee of

perpetual employment. It only means that an employee cannot be dismissed (or
transferred) from the service for causes other than those provided by law and after
due process is accorded the employee. What it seeks to prevent is capricious
exercise of the power to dismiss. But where it is the law-making authority itself
which furnishes the ground for the transfer of a class of employees, no such
capriciousness can be raised for so long as the remedy proposed to cure a
perceived evil is germane to the purposes of the law. (Agripino A. De Guzman, Jr., et
al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

Discuss Abolition of Office.

Held: The creation and abolition of public offices is primarily a legislative function.
It is acknowledged that Congress may abolish any office it creates without impairing
the officers right to continue in the position held and that such power may be
exercised for various reasons, such as the lack of funds or in the interest of
economy. However, in order for the abolition to be valid, it must be made in good
faith, not for political or personal reasons, or in order to circumvent the
constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away with such office wholly and
permanently, as the word abolished denotes. Where one office is abolished and
replaced with another office vested with similar functions, the abolition is a legal
nullity. Thus, in U.P. Board of Regents v. Rasul we said:

It is true that a valid and bona fide abolition of an office denies to the incumbent the
right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in
this case, the renaming and restructuring of the PGH and its component units
cannot give rise to a valid and bona fide abolition of the position of PGH Director.
This is because where the abolished office and the offices created in its place have
similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V.
Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the
principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84
[1989]) that abolition which merely changes the nomenclature of positions is invalid
and does not result in the removal of the incumbent.

The above notwithstanding, and assuming that the abolition of the position of the
PGH Director and the creation of a UP-PGH Medical Center Director are valid, the
removal of the incumbent is still not justified for the reason that the duties and
functions of the two positions are basically the same.

This was also our ruling in Guerrero v. Arizabal, wherein we declared that the
substantial identity in the functions between the two offices was indicia of bad faith
in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et
al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc
[Gonzaga-Reyes])

What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing

structure of government offices or units therein, including the lines of control,
authority and responsibility between them. It involves a reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions. Naturally, it may result in the loss of ones position through removal or
abolition of an office. However, for a reorganization to be valid, it must also pass
the test of good faith, laid down in Dario v. Mison:

x x x As a general rule, a reorganization is carried out in good faith if it is for the

purpose of economy or to make bureaucracy more efficient. In that event, no
dismissal (in case of dismissal) or separation actually occurs because the position
itself ceases to exist. And in that case, security of tenure would not be a Chinese
wall. Be that as it may, if the abolition which is nothing else but a separation or
removal, is done for political reasons or purposely to defeat security of tenure, or
otherwise not in good faith, no valid abolition takes place and whatever
abolition is done, is void ab initio. There is an invalid abolition as where there is
merely a change of nomenclature of positions, or where claims of economy are
belied by the existence of ample funds. (Alexis C. Canonizado, et al. v. Hon.
Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [GonzagaReyes])

2. While the Presidents power to reorganize can not be denied, this does
not mean however that the reorganization itself is properly made in accordance with
law. Well-settled is the rule that reorganization is regarded as valid provided it is
pursued in good faith. Thus, in Dario v. Mison, this Court has had the occasion to
clarify that:

As a general rule, a reorganization is carried out in good faith if it is for the

purpose of economy or to make the bureaucracy more efficient. In that event no
dismissal or separation actually occurs because the position itself ceases to exist.
And in that case the security of tenure would not be a Chinese wall. Be that as it
may, if the abolition which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat security of tenure, or otherwise not in good
faith, no valid abolition takes place and whatever abolition done is void ab initio.
There is an invalid abolition as where there is merely a change of nomenclature of
positions or where claims of economy are belied by the existence of ample funds.
(Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

What are the circumstances evidencing bad faith in the removal of employees as a
result of reorganization and which may give rise to a claim for reinstatement or
reappointment)?

Held: Where there is a significant increase in the number of positions in the new
staffing pattern of the department or agency concerned;

Where an office is abolished and another performing substantially the same

functions is created;

Where incumbents are replaced by those less qualified in terms of status of

appointment, performance and merit;

Where there is a reclassification of offices in the department or agency concerned

and the reclassified offices perform substantially the same functions as the original
offices;

Where the removal violates the order of separation provided in Section 3 hereof.

(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)