ART XI

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

Definitions

Public office

CREATION

ARTICLE IX

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

R.A 7160 – local government code

PUBLIC OFFICER

Art 203

Art. 203. Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Republic Act No. 6713

AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES

Section 1. Title. - This Act shall be known as the "Code of Conduct and Ethical Standards for Public Officials and Employees."

Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.

Section 3. Definition of Terms. - As used in this Act, the term:

(a) "Government" includes the National Government, the local governments, and all other instrumentalities, agencies or branches of the Republic of the Philippines including government-owned or controlled corporations, and their subsidiaries.

(b) "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount.

(c) "Gift" refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favor of another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in anticipation of, or in exchange for, a favor from a public official or employee.

(d) "Receiving any gift" includes the act of accepting directly or indirectly, a gift from a person other than a member of his family or relative as defined in this Act, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is neither nominal nor insignificant, or the gift is given in anticipation of, or in exchange for, a favor.

(e) "Loan" covers both simple loan and commodatum as well as guarantees, financing arrangements or accommodations intended to ensure its approval.

(f) "Substantial stockholder" means any person who owns, directly or indirectly, shares of stock sufficient to elect a director of a corporation. This term shall also apply to the parties to a voting trust.

(g) "Family of public officials or employees" means their spouses and unmarried children under eighteen (18) years of age.

(h) "Person" includes natural and juridical persons unless the context indicates otherwise.

(i) "Conflict of interest" arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty.

(j) "Divestment" is the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor of a person or persons other than his spouse and relatives as defined in this Act.

(k) "Relatives" refers to any and all persons related to a public official or employee within the fourth civil degree of consanguinity or affinity, including bilas, inso and balae.

Section 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to

positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

(B) The Civil Service Commission shall adopt positive measures to promote (1) observance of these standards including the dissemination of information programs and workshops authorizing merit increases beyond regular progression steps, to a limited number of employees recognized by their office colleagues to be outstanding in their observance of ethical standards; and (2) continuing research and experimentation on measures which provide positive motivation to public officials and employees in raising the general level of observance of these standards.

Section 5. Duties of Public Officials and Employees. - In the performance of their duties, all public officials and employees are under obligation to:

(a) Act promptly on letters and requests. - All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request.

(b) Submit annual performance reports. - All heads or other responsible officers of offices and agencies of the government and of government-owned or controlled corporations shall, within forty-five (45) working days from the end of the year, render a performance report of the agency or office or corporation concerned. Such report shall be open and available to the public within regular office hours.

(c) Process documents and papers expeditiously. - All official papers and documents must be processed and completed within a reasonable time from the preparation thereof and must contain, as far as practicable, not more than three (3) signatories therein. In the absence of duly authorized signatories, the official next-in-rank or officer in charge shall sign for and in their behalf.

(d) Act immediately on the public's personal transactions. - All public officials and employees must attend to anyone who wants to avail himself of the services of their offices and must, at all times, act promptly and expeditiously.

(e) Make documents accessible to the public. - All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours.

Section 6. System of Incentives and Rewards. - A system of annual incentives and rewards is hereby established in order to motivate and inspire public servants to uphold the highest standards of ethics. For this purpose, a Committee on Awards to Outstanding Public Officials and Employees is hereby created composed of the following: the Ombudsman and Chairman of the Civil Service Commission as Co-Chairmen, and the Chairman of the Commission on Audit, and two government employees to be appointed by the President, as members.

It shall be the task of this Committee to conduct a periodic, continuing review of the performance of public officials and employees, in all the branches and agencies of Government and establish a system of annual incentives and rewards to the end that due recognition is given to public officials and employees of outstanding merit on the basis of the standards set forth in this Act.

The conferment of awards shall take into account, among other things, the following: the years of service and the quality and consistency of performance, the obscurity of the position, the level of salary, the unique and exemplary quality of a certain achievement, and the risks or temptations inherent in the work. Incentives and rewards to government officials and employees of the year to be announced in public ceremonies honoring them may take the form of bonuses, citations, directorships in government-owned or controlled corporations, local and foreign scholarship grants, paid vacations and the like. They shall likewise be automatically promoted to the next higher position with the commensurate salary suitable to their qualifications. In case there is no next higher position or it is not vacant, said position shall be included in the budget of the office in the next General Appropriations Act. The Committee on Awards shall adopt its own rules to govern the conduct of its activities.

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

(a) Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

(1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law;

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or

(3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

(c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest.

(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

As to gifts or grants from foreign governments, the Congress consents to:

(i) The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy;

(ii) The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or

(iii) The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs.

The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection, including pertinent reporting and disclosure requirements.

Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements.

Section 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.

(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.

The two documents shall contain information on the following:

(a) real property, its improvements, acquisition costs, assessed value and current fair market value;

(b) personal property and acquisition cost;

(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like;

(d) liabilities, and;

(e) all business interests and financial connections.

The documents must be filed:

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and

(c) within thirty (30) days after separation from the service.

All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government.

Husband and wife who are both public officials or employees may file the required statements jointly or separately.

The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by:

(1) Constitutional and national elective officials, with the national office of the Ombudsman;

(2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials with the Office of the President.

(3) Regional and local officials and employees, with the Deputy Ombudsman in their respective regions;

(4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions; and

(5) All other public officials and employees, defined in Republic Act No. 3019, as amended, with the Civil Service Commission.

(B) Identification and disclosure of relatives. - It shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the Government in the form, manner and frequency prescribed by the Civil Service Commission.

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours.

(2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law.

(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification.

(4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless needed in an ongoing investigation.

(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed under this Act for:

(a) any purpose contrary to morals or public policy; or

(b) any commercial purpose other than by news and communications media for dissemination to the general public.

Section 9. Divestment. - A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption.

The same rule shall apply where the public official or employee is a partner in a partnership.

The requirement of divestment shall not apply to those who serve the Government in an honorary capacity nor to laborers and casual or temporary workers.

Section 10. Review and Compliance Procedure. - (a) The designated Committees of both Houses of the Congress shall establish procedures for the review of statements to determine whether said statements which have been submitted on time, are complete, and are in proper form. In the event a determination is made that a statement is not so filed, the appropriate Committee shall so inform the reporting individual and direct him to take the necessary corrective action.

(b) In order to carry out their responsibilities under this Act, the designated Committees of both Houses of Congress shall have the power within their respective jurisdictions, to render any opinion interpreting this Act, in writing, to persons covered by this Act, subject in each instance to the approval by affirmative vote of the majority of the particular House concerned.

The individual to whom an opinion is rendered, and any other individual involved in a similar factual situation, and who, after issuance of the opinion acts in good faith in accordance with it shall not be subject to any sanction provided in this Act.

(c) The heads of other offices shall perform the duties stated in subsections (a) and (b) hereof insofar as their respective offices are concerned, subject to the approval of the Secretary of Justice, in the case

of the Executive Department and the Chief Justice of the Supreme Court, in the case of the Judicial Department.

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.

(c) Private individuals who participate in conspiracy as co-principals, accomplices or accessories, with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities as the public officials or employees and shall be tried jointly with them.

(d) The official or employee concerned may bring an action against any person who obtains or uses a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is brought may assess against such person a penalty in any amount not to exceed twenty-five thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter shall apply.

Section 12. Promulgation of Rules and Regulations, Administration and Enforcement of this Act. - The Civil Service Commission shall have the primary responsibility for the administration and enforcement of this Act. It shall transmit all cases for prosecution arising from violations of this Act to the proper authorities for appropriate action: Provided, however, That it may institute such administrative actions and disciplinary measures as may be warranted in accordance with law. Nothing in this provision shall be construed as a deprivation of the right of each House of Congress to discipline its Members for disorderly behavior.

The Civil Service Commission is hereby authorized to promulgate rules and regulations necessary to carry out the provisions of this Act, including guidelines for individuals who render free voluntary service to the Government. The Ombudsman shall likewise take steps to protect citizens who denounce acts or omissions of public officials and employees which are in violation of this Act.

Section 13. Provisions for More Stringent Standards. - Nothing in this Act shall be construed to derogate from any law, or any regulation prescribed by any body or agency, which provides for more stringent standards for its official and employees.

Section 14. Appropriations. - The sum necessary for the effective implementation of this Act shall be taken from the appropriations of the Civil Service Commission. Thereafter, such sum as may be needed for its continued implementation shall be included in the annual General Appropriations Act.

Section 15. Separability Clause. - If any provision of this Act or the application of such provision to any person or circumstance is declared invalid, the remainder of the Act or the application of such provision to other persons or circumstances shall not be affected by such declaration.

Section 16. Repealing Clause. - All laws, decrees and orders or parts thereof inconsistent herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier penalty.

Section 17. Effectivity. - This Act shall take effect after thirty (30) days following the completion of its publication in the Official Gazette or in two (2) national newspapers of general circulation.

DEFACTO OFFICERS

TORRES VS RIBO

G.R. No. L-2051 May 21, 1948

BERNARDO TORRES, protestant-appellant,

vs.

MAMERTO S. RIBO and ALEJANDRO BALDERIAN, respondents-appellees.

Ramon Diokno, Mateo Canonoy, Olegario Lastrilla and Jose W. Diokno for appellant.

Antonio Montilla, Francisco Astilla and Francisco Pajao for appellees.

TUAZON, J.:

This is an appeal from the order of the Court of First Instance of Leyte dismissing a motion for a protest for provincial governor on the alleged ground that the motion was filed out of time. The question turns upon whether the period for filing the protest should be counted from the 22nd or from the 24th of November, 1947. The court below used the first date as the starting point of computation.

The pertinent facts are these: The protestant, Bernardo Torres, and the defendants, Mamerto S. Ribo and Alejandro Balderian, were opposing candidates for provincial governor of Leyte in the general elections held on November 11, 1947. As Mamerto S. Ribo, who was provincial governor, and two members of the provincial board were candidates, they are disqualified to form parts of the provincial board of canvassers of which they were to be members under section 158 of the Revised Election Code. Consequently, and in pursuance of Section 159, the Commission on Elections, in a telegram to the provincial treasurer dated November 20 and received on November 21 in Tacloban, Leyte, appointed the division superintendent of schools, the district engineer and the district health officer to replace the disqualified members, with advice that they might assume office upon receipt of their appointments. It so happened that the division superintendent of schools and the district engineer were on that date on the west coast of the province and did not return to Tacloban until the 24th. In the meantime, on November 22, F. Martinez, provincial treasurer, as chairman, Gregorio Abogado, provincial fiscal, Vicente Tizon, assistant civil engineer in the district engineer's office, Evaristo Pascual, chief clerk in the office of the division superintendent of schools, and W. Enage, acting district health officer, canvassed the votes for provincial governor and other officers and proclaimed "Mamerto S. Ribo as Governor-elect." Vicente Tizon and Evaristo Pascual sat as members "representing the district engineer and the division superintendent of schools respectively.

On November 24, 1947, the provincial board of canvassers again met, the meeting this time being attended by the provincial treasurer, the provincial fiscal, the district health officer, the division superintendent of schools, the district engineer and the provincial auditor. In that meeting the board

made a new canvass of the votes and proclaimed Mamerto S. Ribo elected to the office of provincial governor.

Were assistant civil engineer Vicente Tizon and chief clerk Evaristo Pascual lawful members of the provincial board of canvassers? Judge Victoriano who first took cognizance of the case decided this question on the negative. On a motion for reconsideration Judge Edmundo Piccio, another judge sitting in Tacloban, reversed Judge Victoriano's order. Judge Piccio said, "Verily it would be absurd to suppose that in this kind of official commitments, the District Engineer, the Division Superintendent of Schools could not be represented by their Assistants who are in themselves competent and qualified persons. . . it is unreasonable to sustain the arguments that the District Engineer and the Division Superintendent of Schools could not delegate their prerogatives because as contended, this power or prerogatives belongs exclusively to the Commission on Elections.

A statement in a Judge Piccio's decision needs correction although the point, in our view of the case, is not material. It does not appear, and there is no pretense on the part of the protestee, that the division superintendent of schools and the district engineer delegated their authority to Pascual and Tizon. Upon whose instance or suggestion these two presumed to act in representation of their chiefs is nor shown.

Section 158 of the Revised Election Code designates the officers who are to comprise the provincial board of canvassers, and section 159 enumerates the officers to be appointed substitute members by the Commission on Elections in case of the absence or incapacity of any of the members named in the next preceding section. They are the division superintendent of schools, the district health officer, the register of deeds, the clerk of the Court of First Instance, and the justice of the peace of the provincial capital.

This express enumeration excludes other officers. Expresio unius est exclusio alterius. Not even the Commission on Elections may lawfully appoint any of the person or officer outside of those mentioned. Much less may any one other than this officers act as the member of the provincial board of canvasser by delegation by a substitute members, by the indication of other members of the board, or of his own volition. The appointment of a substitute member is personal and restricted and his powers must be performed directly and in person by the appointee. To hold otherwise would be to authorize the appointment, say, by the provincial treasurer, the provincial auditor, or the provincial fiscal of another person to act in his stead and thus take away from the hands of the Commission on Elections the authority to appoint under section 159.

An officer to whom a discretion is entrusted can not delegate it to another. The powers of the board of canvassers are not purely ministerial, as the court below erroneously holds. The board excercise quasi judicial functions, such as the function and duty to determined whether the papers transmitted to them are genuine election returns signed by the proper officers. Thus, where what purports to be two or more returns from the same municipality are received, the canvassing board must necessarily determine from the face of the papers which one shall be regarded as the true and genuine return. (20 C. J., 201-202.).

In truth, there was presented to the board on the 22nd a matter which required the used of the judgment. It appears from the minutes of the meeting of that date that the returns from four municipalities were incomplete or entirely missing, so much so that in accordance with section 161 the provincial treasurer notified the provincial fiscal of that fact. The minutes read:

The report of the provincial treasurer, dated November 21, 1947, to the Provincial fiscal, regarding missing election returns in certain municipalities, that is not yet received by the provincial treasurer, was read and considered by the Board. Also, certified statements by the municipal treasurers of the municipalities concerned, showing the votes cast in their municipalities as shown in their (treasurers') copies of the election returns for which no copies for the provincial treasurer were yet received, are also presented. In order not to delay the canvassing, it was decided that such certified statements of the respective municipal treasurers be taken at their face value in lieu of the missing election returns. The municipalities affected are as follows:

1. Hinunangan — (a) No election returns for board members in Precinct No. 1. (b) No election return in Precinct No. 11.

2. Leyte — (a) No election returns to precincts No. 6 (b) No election return for board members in Precinct No. 11. (Certified copies of these election returns were received from the office of the Municipal Treasurer in the course of the session of the Board of Canvassers.)

3. Pastrana — No election returns for governor and board members in Precinct No. 1. (The missing returns were received from the municipality in the course of the session of the Board.)

4. Merida — No election return for board members in Precinct No. 10.

Nevertheless, the Provincial Treasurer informed the Board that efforts have been and are being exerted by his office to obtain said missing election returns. As soon as they are received, authenticity of the said municipal treasurers' statements will have to be considered from said returns.

On this vital question Tizon and Pascual voted. This was not a ministerial or mechanical task. That the returns subsequently received tallied with the municipal treasurer's certificates does not cure the mistake committed.

Quite apart from the intervention of Tizon and Pascual in the canvass, we are of the belief that the canvass was premature and illegal. Section 162 of the Revised Election Code provides that "If it should clearly appear that some requisite in form has been omitted in the statements, the board shall return them by messenger or by another more expeditious means, to the corresponding board of canvassers for correction." The board had before it not defective returns but papers or documents that were not returns at all.

The requirement of section 160 that "the provincial board of canvassers shall meet as soon as possible within fifteen days next following the day of election" and that "as soon as all the statements are before it but not later than fifteen days next following the date of the election, the provincial board of canvassers shall proceed to make the canvass of all the votes cast in the province for national, provincial and city candidates, etc." is merely directory (20 C. J., 199) and does not legalize the making and completing of the canvass before all the returns are in.

The protestee maintains that at any rate Pascual and Tizon were de facto officers. This contention is without any foundation in law. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such a length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without injury, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action. (46 C. J., 1053.)

Tizon and Pascual did not possess any of these conditions. They acted without any appointment, commission or any color of title to the office. There was no acquiescence, public or private, in their discharge of the position. In fact the very person most greatly affected by their assumption of the office, Bernardo Torres, was not notified and was not unaware of it.

Tizon and Pascual eliminated, there were only three lawful members sitting on the board of canvassers on November 22. Under section 159 of the Revised Penal Code the provincial board of canvassers is to be composed of six members — the provincial governor, the two members of the provincial board, the provincial treasurer, the provincial auditor and the provincial fiscal — subject to be replaced by the officers named in the same section in case of their absence or disability. The Revised Election Code does not state the number of the members of the canvassing board necessary to be present at the canvass. One court has held that when one member absents himself from the session before completion of the canvass the acts of the remaining members of the board in completing the canvass and certifying the result were valid. (Ex parte Smith [Okl.] 154, page 521.) Some courts, however have held that the canvassers cannot act unless all are present. (Chumasero vs. Patts, 2 Mont., 242 [writ of error dismissed 92 U. S., 358; 23 L. ed., 499].)

We do not decide whether the presence of the six members of the board of canvassers is essential. We leave this question open. Whatever the law, it is our considered opinion that the presence of the three members is not enough compliance with the law. If it were, two would be, and even one. There must at be a quorum, which is a majority of all the members, or one half their number plus one. In the present case, four constitute the quorum. The decisions just cited are very helpful on the other aspect of the case. They served to emphasize the importance attached to the office of member of the board of canvassers and the gravity and non-delegability of its functions and duties.

Upon the foregoing considerations, our judgment is that the meeting of November 22, 1947 of the provincial board of canvassers and the proclamation in that meeting of the protestee were illegal and of no effect. With this conclusion we refrain from discussing the other errors assigned by the appellant.

The appealed order will be reversed with costs against the appellees. It is so ordered.

QUALIFICATIONS OF PUBLIC OFFICE

CITIZENSHIP REQUIREMENT

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,

vs.

COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

J.L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active

participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following

certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours,

WILLIAM L. WHITTAKER

Clerk

by:

(Sgd.)

ARACELI V. BAREN

Deputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States.

The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary — nor do they claim to have been coerced — to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions — surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., took no part.

Cortes J., concurs in the result.

Separate Opinions

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province.

It is an established rule of long standing that the period fixed by law for the filing of a protest — whether quo warranto or election contest — is mandatory and jurisdictional. 1

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. 2 The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. 3 The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. 4 However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, 5 the Court should allow a person like respondent Estuye or his league to bring the action.

I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. 6 Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious

grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.

THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on

November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel

we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6

x x x

While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality. 7

x x x

Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for

deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival,

who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a decision. Under

Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

KILOSBAYAN VS EXECUTIVE SECRETARY

G.R. No. 177721 July 3, 2007

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN FOUNDATION, petitioners,

vs.

EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN JUSTICE GREGORY S. ONG, respondents.

D E C I S I O N

AZCUNA, J.:

Filed on May 23, 2007 was this petition for certiorari under Rule 65 of the Rules of Court.

Petitioners are people’s and/or non-governmental organizations engaged in public and civic causes aimed at protecting the people’s rights to self-governance and justice.

Respondent Executive Secretary is the head of the Office of the President and is in charge of releasing presidential appointments including those of Supreme Court Justices.

Respondent Gregory S. Ong is allegedly the party whose appointment would fill up the vacancy in this Court.

Petitioners allege that:

On May 16, 2007, respondent Executive Secretary, in representation of the Office of the President, announced an appointment in favor of respondent Gregory S. Ong as Associate Justice of the Supreme Court to fill up the vacancy created by the retirement on April 28, 2007 of Associate Justice Romeo J.

Callejo, Sr. The appointment was reported the following day, May 17, 2007, by the major daily publications.

On May 18, 2007, the major daily publications reported that the appointment was "recalled" or "held in abeyance" by Malacañang in view of the question relating to the citizenship of respondent Gregory S. Ong. There is no indication whatever that the appointment has been cancelled by the Office of the President.

On May 19, 2007, the major daily publications reported that respondent Executive Secretary stated that the appointment is "still there except that the validation of the issue is being done by the Judicial and Bar Council (JBC)."

Petitioners contend that the appointment extended to respondent Ong through respondent Executive Secretary is patently unconstitutional, arbitrary, whimsical and issued with grave abuse of discretion amounting to lack of jurisdiction.

Petitioners claim that respondent Ong is a Chinese citizen, that this fact is plain and incontestable, and that his own birth certificate indicates his Chinese citizenship. Petitioners attached a copy of said birth certificate as Annex "H" to the petition. The birth certificate, petitioners add, reveals that at the time of respondent Ong’s birth on May 25, 1953, his father was Chinese and his mother was also Chinese.

Petitioners invoke the Constitution:

Section 7 (1) of Article VIII of the 1987 Constitution provides that "No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines." Sec. 2 of Art. IV defines "natural-born citizens as those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship."1

Petitioners maintain that even if it were granted that eleven years after respondent Ong’s birth his father was finally granted Filipino citizenship by naturalization, that, by itself, would not make respondent Ong a natural-born Filipino citizen.

Petitioners further argue that respondent Ong’s birth certificate speaks for itself and it states his nationality as "Chinese" at birth. They invoke the Civil Code:

Article 410 of the Civil Code provides that "[t]he books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained." Therefore, the entry in Ong’s birth certificate indicating his nationality as Chinese is prima facie evidence of the fact that Ong’s citizenship at birth is Chinese.

Article 412 of the Civil Code also provides that "[N]o entry in a civil register shall be changed or corrected without a judicial order." Thus, as long as Ong’s birth certificate is not changed by a judicial order, the Judicial & Bar Council, as well as the whole world, is bound by what is stated in his birth certificate.2

This birth certificate, petitioners assert, prevails over respondent Ong’s new Identification Certificate issued by the Bureau of Immigration dated October 16, 1996, stating that he is a natural-born Filipino and over the opinion of then Secretary of Justice Teofisto Guingona that he is a natural-born Filipino. They maintain that the Department of Justice (DOJ) does not have the power or authority to alter entries in a birth certificate; that respondent Ong’s old Identification Certificate did not declare that he is a natural-born Filipino; and that respondent Ong’s remedy is an action to correct his citizenship as it appears in his birth certificate.

Petitioners thereupon pray that a writ of certiorari be issued annulling the appointment issued to respondent Ong as Associate Justice of this Court.

Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for the Issuance of a Temporary Restraining Order (TRO), praying that a TRO be issued, in accordance with the Rules of Court, to prevent and restrain respondent Executive Secretary from releasing the appointment of respondent Ong, and to prevent and restrain respondent Ong from assuming the office and discharging the functions of Associate Justice of this Court.

The Court required respondents to Comment on the petition.

Respondent Executive Secretary accordingly filed his Comment, essentially stating that the appointment of respondent Ong as Associate Justice of this Court on May 16, 2007 was made by the President pursuant to the powers vested in her by Article VIII, Section 9 of the Constitution, thus:

SEC. 9. The Members of the Supreme Court and Judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

Respondent Executive Secretary added that the President appointed respondent Ong from among the list of nominees who were duly screened by and bore the imprimatur of the JBC created under Article VIII, Section 8 of the Constitution. Said respondent further stated: "The appointment, however, was not released, but instead, referred to the JBC for validation of respondent Ong’s citizenship."3 To date, however, the JBC has not received the referral.

Supporting the President’s action and respondent Ong’s qualifications, respondent Executive Secretary submits that:

1. The President did not gravely abuse her discretion as she appointed a person, duly nominated by the JBC, which passed upon the appointee’s qualifications.

2. Justice Gregory S. Ong is a natural-born citizen as determined by the Bureau of Immigration and affirmed by the Department of Justice, which have the authority and jurisdiction to make determination on matters of citizenship.

3. Undisputed evidence disclosed that respondent Ong is a natural-born citizen.

4. Petitioners are not entitled to a temporary restraining order.4

Respondent Ong submitted his Comment with Opposition, maintaining that he is a natural-born Filipino citizen; that petitioners have no standing to file the present suit; and that the issue raised ought to be addressed to the JBC as the Constitutional body mandated to review the qualifications of those it

recommends to judicial posts. Furthermore, the petitioners in his view failed to include the President who is an indispensable party as the one who extended the appointment.

As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos of Malolos, Bulacan, born on November 25, 1881, who was allegedly a Filipino citizen5 who married Chan Kin, a Chinese citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ong’s mother, Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen, who were married in 1927; that, therefore, respondent’s mother was a Filipino citizen at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese citizen; that when respondent Ong was eleven years old his father, Eugenio Ong Han Seng, was naturalized, and as a result he, his brothers and sisters, and his mother were included in the naturalization.

Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was born.

Summarizing, his arguments are as follows:

I. PETITIONERS’ LACK OF STANDING AND INABILITY TO IMPLEAD AN INDISPENSABLE PARTY WHOSE OFFICIAL ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE EXERCISE OF JUDICIAL POWER AND SHOULD PREVENT THIS CASE FROM PROCEEDING FURTHER FOR DETERMINATION ON THE MERITS BY THIS HONORABLE COURT.

II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A NATURAL-BORN CITIZEN OF THE PHILIPPINES, CONSIDERING THAT:

A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN AT THE TIME OF HER MARRIAGE TO EUGENIO; and

B. HAVING BEEN BORN BEFORE JANUARY 17, 1973 OF A FILIPINO MOTHER AND WHO ELECTED FILIPINO CITIZENSHIP UPON REACHING THE AGE OF MAJORITY, RESPONDENT ONG MEETS THE REQUIREMENTS UNDER ARTICLE IV, SECTIONS 1 AND 2 OF THE 1987 CONSTITUTION.

III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS PRESENTED BY PETITIONERS CAN, IN NO WAY, WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE IS A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY THAT HE IS, IN FACT, A NATURAL-BORN FILIPINO, DESCENDED FROM "INDIOS."

IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO RESORT TO JUDICIAL ACTION UNDER RULE 108 OF THE RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN FILIPINO.

V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE LEGAL AUTHORITY OR PRIMARY ADMINISTRATIVE JURIDICTION TO MAKE A DETERMINATION AS REGARDS THE CITIZENSHIP OF RESPONDENT ONG, AND UPON SUBSEQUENT CONFIRMATION BY THE SECRETARY OF JUSTICE AS REQUIRED BY THE RULES, ISSUE A DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO. 113878) RECOGNIZING THAT RESPONDENT ONG IS A NATURAL-BORN FILIPINO, THEREBY RENDERING NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR HIM TO ASSUME THE POSITION OF ASSOCIATE JUSTICE OF THE SUPREME COURT.7

Petitioners, in turn, filed a Consolidated Reply, in which they asserted their standing to file this suit on the strength of previous decisions of this Court, e.g., Kilosbayan, Incorporated v. Guingona8 and Kilosbayan, Incorporated v. Morato,9 on the ground that the case is one of transcendental importance. They claim that the President’s appointment of respondent Ong as Supreme Court Justice violates the Constitution and is, therefore, attended with grave abuse of discretion amounting to lack or excess of jurisdiction. Finally, they reiterate that respondent Ong’s birth certificate, unless corrected by judicial order in non-summary proceedings for the purpose, is binding on all and is prima facie evidence of what it states, namely, that respondent Ong is a Chinese citizen. The alleged naturalization of his father when he was a minor would not make him a natural-born Filipino citizen.

The petition has merit.

First, as to standing. Petitioners have standing to file the suit simply as people’s organizations and taxpayers since the matter involves an issue of utmost and far-reaching Constitutional importance, namely, the qualification – nay, the citizenship – of a person to be appointed a member of this Court. Standing has been accorded and recognized in similar instances.10

Second, as to having to implead the President as an alleged necessary party. This is not necessary since the suit impleads the Executive Secretary who is the alter ego of the President and he has in fact spoken for her in his Comment. Furthermore, the suit does not seek to stop the President from extending the appointment but only the Executive Secretary from releasing it and respondent Ong from accepting the same.

Third, as to the proper forum for litigating the issue of respondent Ong’s qualification for memberhip of this Court. This case is a matter of primordial importance involving compliance with a Constitutional mandate. As the body tasked with the determination of the merits of conflicting claims under the Constitution,11 the Court is the proper forum for resolving the issue, even as the JBC has the initial competence to do so.

Fourth, as to the principal issue of the case – is respondent Ong a natural-born Filipino citizen?

On this point, the Court takes judicial notice of the records of respondent Ong’s petition to be admitted to the Philippine bar.

In his petition to be admitted to the Philippine bar, docketed as B.E. No. 1398-N filed on September 14, 1979, under O.R. No. 8131205 of that date, respondent Ong alleged that he is qualified to be admitted to the Philippine bar because, among others, he is a Filipino citizen; and that he is a Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in 1964 when he, respondent Ong, was a minor of eleven years and thus he, too, thereby became a Filipino citizen. As part of his evidence, in support of his petition, be submitted his birth certificate and the naturalization papers of his father. His birth certificate12 states that he was a Chinese citizen at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong Han Seng, was also a Chinese citizen.

Specifically, the following appears in the records:

P E T I T I O N

COMES now the undersigned petitioner and to this Honorable Court respectfully states:

1. That he is single/married/widower/widow, Filipino citizen and 26 years of age, having been born on May 25, 1953, at SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy Guiok Santos who are citizens of the Philippines, as evidenced by the attached copy of his birth certificate marked as Annex A (if born outside of wedlock, state so; or if Filipino citizen other than natural born, state how and when citizenship was acquired and attach the necessary proofs: By Nat. Case #584 of Eugenio Ong Han Seng (Father) See Attached documents Annex B, B-1, B-2, B-3, B-4.

x x x

V E R I F I C A T I O N

Republic of the Philippines )

City of Manila ) S.S.

I, GREGORY SANTOS ONG, after being sworn, depose and state: that I am the petitioner in the foregoing petition; that the same was prepared by me and/or at my instance and that the allegations contained therein are true to my knowledge.

(Sgd.) GREGORY SANTOS ONG

Affiant

SUBSCRIBED AND SWORN to before me this 28th day of August, 1979, City of Manila, Philippines, affiant exhibiting his/her Residence Certificate No. A-___________, issued at ________________, on __________________, 19__.

(Sgd.)

Notary Public

Until December 31, 1979

PTR No. 3114917

January 19, 1979, Pasig, MM

Doc. No. 98;

Page No. 10;

Book No. VIII;

Series of 1979.13

In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant, wrote respondent Ong a letter dated October 3, 1979 stating that in connection with his Petition for Admission to the 1979 Bar Examinations, he has to submit:

1) A certified clear copy of his Birth Certificate; and

2) A certification of non-appeal re his citizenship from the Office of the Solicitor General.

Respondent Ong complied with these requirements.

It was on the basis of these allegations under oath and the submitted evidence of naturalization that this Court allowed respondent Ong to take the oath as a lawyer.

It is clear, therefore, that from the records of this Court, respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his natural-born status by the Bureau of Immigration and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his mother were naturalized along with his father.

Furthermore, as petitioners correctly submit, no substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. In Labayo-Rowe v. Republic,14 this Court held that:

Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted.15

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court.16

The series of events and long string of alleged changes in the nationalities of respondent Ong’s ancestors, by various births, marriages and deaths, all entail factual assertions that need to be threshed out in proper judicial proceedings so as to correct the existing records on his birth and citizenship. The chain of evidence would have to show that Dy Guiok Santos, respondent Ong’s mother, was a Filipino citizen, contrary to what still appears in the records of this Court. Respondent Ong has the burden of proving in court his alleged ancestral tree as well as his citizenship under the time-line of three Constitutions.17 Until this is done, respondent Ong cannot accept an appointment to this Court as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so.

WHEREFORE, the petition is GRANTED as one of injunction directed against respondent Gregory S. Ong, who is hereby ENJOINED from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship.

This Decision is FINAL and IMMEDIATELY EXECUTORY.

No costs.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia, Velasco, Jr,, JJ., concur.

Sandoval-Gutierrez,J., on leave.

REQUIRED ACTS TO BE PERFORMED

-effect or refusal to take the oath of office (sec. 11, BP 881)

OMNIBUS ELECTION CODE OF THE PHILIPPINES

Section 11 Failure to assume office. - The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control

CORPUZ VS CA

FIRST DIVISION

[G.R. No. 123989. January 26, 1998]

ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND TELEVISION REVIEW ANDCLASSIFICATION BOARD, respondents.

D E C I S I O N

DAVIDE, JR., J.:

Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995 decision of the Court of Appeals in CA-G.R. SP-No. 37694[1] which reversed Resolution No. 93-5964 of the Civil Service Commission (CSC),[2] the latter declaring that petitioner’s separation from the service as Attorney V in the Movie Television Review Board (MTRCB) was not in order and directed that he be automatically restored to his position.

The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSC disclose the following facts:

On 18 July 1986, CORPUZ was appointed as the MTRCB’s legal Counsel -- Prosecutor and Investigation Services (Supervising Legal Staff Officer).[3] The appointment was approved by Asst. Regional Director Benita Santos of the CSC-National Capital Region. Subsequently, CORPUZ’ position was designated Attorney V under the Salary Standardization Law.

As MTRCB Legal Counsel, CORPUZ’ duties included “attendance in Board meetings” pursuant to then Chairman Morato’s memorandum of 11 September 1987.[4]

Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled “An Act To Declare The Appointments Of The Administrative And Subordinate Employees Of This Board As Null And Void.” This undated resolution noted that the past and present Chairmen of the MTRCB had failed to submit for approval the appointments of administrative and subordinate employees to the MTRCB before forwarding them to the CSC, in violation of Section 5 of P.D. No. 876-A, and later, P.D. No. 1986.[6] It thus declared:

FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] that ALL the appointments of the present administrative and subordinate employees of this Board suffers [sic] from illegality and therefore [are] considered invalid and of no value and effect ab initio.

IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that the Chairman recommend to this Board, the appointment of all or some of the present administrative and subordinate employees of this Board, or new ones, at his initiative, discretion and preference, including the category of the position for which the appointees [are] recommended, within a period of ONE MONTH from the approval of this Resolution;

IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings and functions of this Board while this body is awaiting for [sic] the recommendation of the appointments of the old and or new appointees, the present administrative and subordinate employees shall hold on [to] their position[s] in an [sic] holdover capacity.

As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his office on 1 August 1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 8-1-91, was approved by the MTRCB en banc on 9 October 1991. No copy of Resolution No. 10-2-91, however, was found in the records.

CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on leave. The Resolution was likewise kept secret and it was only on 12 March 1993 that an announcement[8] of its contents was posted by an Ad Hoc Committee on the MTRCB bulletin board. This announcement invited the submission of any information concerning the appointments involved therein to the Committee. It appears, however, that nothing was immediately done to implement Resolution No. 8-1-91.

On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new members of the Board were likewise appointed with Mendez assuming office in August 1992.

At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-1-91. An Ad Hoc Committee composed of MTRCB members was then constituted to look into the appointments extended by former Chairman Morato, as well as the qualifications of the appointees. The Committee then posted on the MTRCB bulletin board the 12 March 1993 announcement mentioned above.

Thereafter, the Committee resolved to recommend to the MTRCB the approval of the appointments, except that of CORPUZ and seven others.

In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCB regular meeting of 25 June 1993, his appointment was disapproved effective 30 June 1993. None of the parties attached to their pleadings a copy of the MTRCB Resolution disapproving the appointment.

On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a formal investigation and hearing. In her comment to the complaint, Mendez stated that she discovered that the appointments extended by Morato were not submitted to the MTRCB for approval pursuant to Section 5(c) of P.D. No. 1986; hence to cure the defect, she submitted the appointments to the MTRCB.

On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB authority to fill up positions vacated in the agency due to appointments which were not submitted to the MTRCB for approval.[10]

However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of CORPUZ, as follows:

It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission because it was signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly authorized signatory of MTRCB appointments. All the appointments signed by Mr. Morato in his capacity as MTRCB Chairman are presumed to have been made after complying with all the legal requirements including the Board approval, whether express or implied.

The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action for revocation or recall which may be brought to the Commission within a reasonable period of time after its approval… Since no such action was filed with the Commission, we can safely state that Corpuz had already acquired security of tenure in the said position. Hence, the Commission can not allow the current Board’s disapproval of the said appointment to produce any effect. Atty. Corpuz can no longer be separated from the service except for cause and after observing the requirements of due process.

WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that the separation of Mr. David Corpuz from the service is not in order. Accordingly, he is automatically restored to his position of Atty. V with payment of back salaries.

The MTRCB’s motion for reconsideration was denied by the CSC in Resolution No. 94-2551[12] dated 20 June 1994.

In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of the Ombudsman.[13]

The MTRCB filed with us a special civil action for certiorari which we referred to the Court of Appeals in view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case as CA-G.R. SP No. 37694.

In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the CSC, ruling that since the appointment of CORPUZ was not approved by the MTRCB, the appointment was invalid and he could not invoke security of tenure. In support of its ruling, the Court of Appeals held:

Presidential Decree No. 1986, the law creating the Movie and Television Review and Classification Board, specifically provides as follows:

“Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational structure and staffing pattern. It shall have the power to suspend or dismiss for cause any employee and/or approve or disapprove the appointment, transfer or detail of employees. It shall appoint the Secretary of the Board who shall be the official custodian of the records of the meetings of the Board and who shall perform such other duties and functions as directed by the Board.” (Underscoring supplied)

The record shows that the appointment of respondent Atty. David Corpuz was not approved by the Board, as mandated by Presidential Decree No. 1986, Section 16.

The Supreme Court, in a similar case has reiterated the importance of complying with legal requirements for a valid appointment. In Tomali vs. Civil Service Commission (238 SCRA 572), it held:

“Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs. Subido, 21 SCRA 127). Without the favorable certification or approval of the Commission, in cases when such an approval is required, no title to the office can yet be deemed to be permanent; vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the appointing authority (Grospe vs. Secretary of Public Works and Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on Elections, 20 SCRA 797). Until an appointment has become a completed act, it would

likewise be precipitate to invoke the rule of security of tenure (See Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra vs. Subido, 21 SCRA 797).”

It appearing that respondent Atty. Corpuz’ appointment was not approved by the Board, the same cannot be considered as [a] valid appointment. As such, he cannot invoke security of tenure, even if he has rendered service for a number of years.

Neither would the silence or the failure of the Board to recall the private respondent’s appointment constitute as a [sic] consent or confirmation. In the aforecited case, the Supreme Court restated the existing jurisprudence on the matter, thus:

“The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of the approval of the Commissioner on Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not approved, may only be considered as a de facto officer.” (Tomali vs. Civil Service Commission, supra citing Favis vs. Rupisan, 17 SCRA 190, 191)

Thus, We find merit in petitioner’s contention that respondent Atty. David Corpuz did not acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB for failure to comply with the legal requirements needed for a valid appointment. Hence, he cannot be reinstated. Not being a permanent employee of the Movie and Television Review and Classification Board, the tenure of respondent Atty. Corpuz ceased when he was not properly appointed under present law.

His motion for reconsideration having been denied in the Resolution[15] of 13 February 1996, CORPUZ filed the instant petition under Rule 45 of the Rules of Court and asked us to reverse the challenged decision of the Court of Appeals on the sole ground that:

THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF PETITIONER ATTY. DAVID B. CORPUZ DID NOT HAVE THE APPROVAL OF THE MTRCB BOARD WHICH IF NOT CORRECTED, IS TANTAMOUNT TO A VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.

In his Memorandum, however, CORPUZ explicitly declared that he “is no longer seeking reinstatement with respondent MTRCB but for the continuity of his government service from the time he was illegally dismissed on 30 June 1993 up to the time he was permanently employed with the Office of the Ombudsman on 22 August 1994 plus back salaries and other benefits due him if not for the illegal dismissal.”[16]

Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-Chairman and thirty (30) members, all appointed by the President of the Philippines. Section 5 thereof enumerates the following functions, powers and duties of the Chairman as the Chief Executive Officer of the MTRCB, to wit:

(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued by the BOARD;

(b) Direct and supervise the operations and the internal affairs of the BOARD;

(c) Establish the internal organization and administrative procedures of the BOARD, and recommend to the BOARD the appointment of the necessary administrative and subordinate personnel; and

(d) Exercise such other powers and functions and perform such duties as are not specifically lodged in the BOARD.

On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of Appeals, vests upon the Board itself the power to, inter alia, approve or disapprove the appointments of its personnel.

It is thus clear that there are two stages in the process of appointing MTRCB personnel, other than its Secretary, namely: (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper, which is among his powers under Section 5(d) above; and (b) approval or disapproval by the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself that is empowered to appoint said official pursuant to Section 16.

It is long settled in the law of public offices and officers that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required of the appointing power is performed.[17] Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. Hence, in the case of CORPUZ, since the last act required for the completion of his appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his services were properly terminated. This Court so declared in Favis v. Rupisan[18] where the appointment involved was not approved by the Civil Service Commission pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a) of Rule VI of the Civil Service Rules implementing said law; Taboy v. Court of Appeals[19] and Provincial Board of Cebu v. Presiding Judge of Cebu Court of First Instance[20] where the appointments of subject employees were disapproved by the Provincial Boards pursuant to the powers granted them; in Carillo v. Court of Appeals[21] where the required consent of the municipal council in the appointment of the chief of police was not obtained; and in Tomali v. Civil Service Commission,[22] which the Court of Appeals relied upon, where the required submission to and approval by the Civil Service Commission were not made as required by Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987. In the latter, this Court held that compliance with the legal requirements for an appointment to a civil service position is essential to make it fully effective. That the employee involved had, in fact, assumed office and performed the functions and duties thereof is of no moment, for it matters not that the appointee had served for several years. Those years of service cannot substitute for the want of consent of another body required by law to complete the appointment. The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable.[23]

A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed office under color of a known appointment which is void by reason of some defect or irregularity in its exercise.[24] Undeniably, under the facts here, CORPUZ was such a de facto officer.

WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.

Costs against petitioner.

NO PROPERTY QUALIFICATIONS TO BE IMPOSED

G.R. No. L-24761 September 7, 1965

LEON G. MAQUERA, petitioner,

vs.

JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as Chairman and Members of the Commission on Elections, and the COMMISSION ON ELECTIONS, respondents.

---------------------------

G.R. No. L-24828 September 7, 1965

FELIPE N. AUREA and MELECIO MALABANAN, petitioners,

vs.

COMMISSION ON ELECTIONS, respondent.

Leon G. Maquera in his own behalf as petitioner.

Ramon Barrios for respondents.

R E S O L U T I O N

PER CURIAM:

Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing:

1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal offices" to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or municipal government concerned if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office to which he has filed his certificate of candidacy, there being not more than four (4) candidates for the same office;"

2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July 20, 1965, decided to require all candidates for President, Vice-President, Senator and Member of the House of Representatives to file a surety bond, by a bonding company of good reputation, acceptable to the Commission, in the sums of P60,000.00 and P40,000.00, for President and Vice-President, respectively, and P32,000.00 for Senator and Member of the House of Representatives;

3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the Commission on Elections, every candidate has to pay the premium charged by bonding companies, and, to offer thereto, either his own properties, worth, at least, the amount of the surety bond, or properties of the same worth, belonging to other persons willing to accommodate him, by way of counter-bond in favor of said bonding companies;

4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running for President, Vice-President, Senator or Member of the House of Representatives those persons who, although having the qualifications prescribed by the Constitution therefore, cannot file the surety bond aforementioned, owing to failure to pay the premium charged by the bonding company and/or lack of the property necessary for said counter-bond;

5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or municipal elective offices, persons who, although possessing the qualifications prescribed by law therefor, cannot pay said premium and/or do not have the property essential for the aforementioned counter-bond;

6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in order that a person could run for a public office and that the people could validly vote for him;

7. That said property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office; and

8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not predicated upon the necessity of defraying certain expenses or of compensating services given in connection with elections, and is, therefore, arbitrary and oppressive.

The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Republic Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents herein, as well as their representatives and agents, from enforcing and/or implementing said constitutional enactment.

Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon., Makalintal and Zaldivar, JJ., concur.

Bengzon, C.J., took no part.

Barrera, J., is on leave.

Separate Opinions

BENGZON, J.P., J., concurring:.

A democratic form of government requires that political rights be enjoyed by the citizens regardless of social or economic distinctions. Such is our government. As far back as 1899, the Representatives of the Filipino people adopted a Political Constitution at Malolos, Bulacan, providing that: "The political association of all the Filipinos constitutes a nation, whose state is called the Philippine Republic"; "The Philippine Republic is free and independent"; and "Sovereignty resides exclusively in the people." (Arts. 1, 2 and 3.) A generation later, in 1935, the Filipino people, imploring the aid of Divine Providence, ordained and promulgated the present Constitution of the Philippines, stating the same principle: "The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them." (See. 1, Art. II). Clearly and solemnly, therefore, our citizenry have thus been given the supreme guaranty of a democratic way of life, with all its freedom and limitations, all its rights and duties.

Among the political rights of a Filipino citizen is the right to vote and be voted for a public office. The Constitution has given the right of suffrage to "citizens of the Philippines not otherwise disqualified by law who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election." (Sec. 1, Art. V.)

It is within the power of Congress, however, to prescribe the manner of exercising political rights so long as it does not run counter to the Constitution. The Revised Election Code (RA 180) is the chief instance of the exercise of such legislative power.

Republic Act 4421, effective June 19, 1965, incorporated to the Revised Election Code:

SEC. 36-A. Posting of bond by candidates; exception; forfeiture. — All candidates for national, provincial, city and municipal offices shall post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or municipal government concerned if the candidate, except when declared winner, fails to obtain at least ten per cent of the votes cast for the office to which he has filed his certificate of candidacy there being not more than four candidates for the same office.

The Commission on Elections, implementing Sec. 36-A aforementioned, adopted on July 20, 1965 the following guidelines for the purpose of the November 9, 1965 elections:

1. WHO SHALL POST SURETY BOND — All candidates for national offices shall post a surety bond. A candidate who withdraws his candidacy or ceases to be one, may ask for the return or cancellation of his bond. A party may post surety bond for each of its official candidates.

2. WHEN TO FILE — On or before September 10, 1965, to coincide with the last day for filing certificates of candidacy, to facilitate processing of both bond and certificates of candidacy by the Law Department.

3. WHERE TO FILE — The surety bond shall be filed with the Cash Division, Commission on Elections. Cash bonds may be allowed and the same to be filed in the Commission.

4. AMOUNT OF BOND — The surety bond shall be equivalent to the one-year salary or emoluments of the position to which he is a candidate, to wit:

President P60,000(R.A. 4134)

Vice-President P40,000— do —

Senators P32,000— do —

Congressmen P32,000— do —

5. CONDITION OF THE BOND — That the bond shall be forfeited in favor of the national government if the candidate, except when declared the winner, fails to obtain at least ten percent of the votes cast for the office to which he has filed his certificate of candidacy, there being not more than four candidates for the same office.

6. FAILURE TO POST SURETY BOND — If a candidate fails to post the required surety bond, the Commission on Elections shall refuse to give due course to the certificate of candidacy of said candidate.

7. SURETY — A bonding company of good reputation and acceptable to the Commission.

8. FORFEITURE — The 10% required number of votes shall be based on and determined by the certificate of canvass and proclamation.

At bar are petitions that question the constitutionality of Republic Act 4421 in the ground that the same is undemocratic and contrary to the letter and spirit of the Constitution.

The avowed purpose of Republic Act 4421 in requiring a candidate to post a bond equal to a year's salary of the office for which he will run is to curb the practice of so-called nuisance candidates. Said the explanatory note to said law:

We have had sad experiences along that line. When a person, having the same name as that of a strong candidate, files his candidacy for the same position sought by the latter, this act has the ultimate effect of frustrating the true intent of the voters. While their intent was to vote for the publicly known strong candidate, their votes could be credited to the nuisance candidate. If this practice is not curbed, the Filipino people may find the wrong men elected to an office.

1awphîl.nèt

Such an objective is indeed within the competence of the legislature to provide for. Nonetheless, the purpose alone does not resolve the constitutionality of a statute. It must also be asked whether the effect of said law is or is not to transgress the fundamental law.

Does the law, it may then be asked, operate to bar bona fide candidates from running for office because of their financial inability to meet the bond required? For this the test must be the amount at which the bond is fixed. Where it is fixed at an amount that will impose no hardship on any person for whom there should be any desire to vote as a nominee for an office, and yet enough to prevent the filing of certificates of candidates by anyone, regardless of whether or not he is a desirable candidate, it is a reasonable means to regulate elections. On the otherhand, if it puts a real barrier that would stop many suitable men and women from presenting themselves as prospective candidates, it becomes unjustifiable, for it would defeat its very objective of securing the right of honest candidates to run for public office.

Foremost democracies have similar measure to discourage "freak and propaganda candidates. One was adopted in the electoral system of England. A candidate for the House of Commons, where each member receives 3,250 pounds annual compensation (formerly 1,000 pounds) is required, by the Representatives of the People Act of 1918, to deposit 150 pounds with the returning officer at the time of nomination, the money to be forfeited if he failed to secure 1/8 of the votes. *

In the United States of America a fee system obtains in some states whereby candidates are required to pay filing fees — frequently to help defray costs of election services — ranging from one dollar upwards or a certain percentage of the annual salary of the office sought, the percentage being from 1/4% to 5%.**

It should be noted that in the foregoing the deposits or fees are based on or constitute a certain percentage of the yearly salary. The amount of the bond required by RA 4421 is, as noted, equal to the one-year salary or emolument of the office. It is quite evident, therefore, that several or a considerable number of deserving, honest and sincere prospective candidates for that office would be prevented from running in the election solely due to their being less endowed with the material things in life. It is worth remembering that Section 48 of the Revised Election Code provides: "No candidate shall spend for his election campaign more than the total amount of the emoluments for one year attached to the office for which he is a candidate." Thus, the amount of a one-year salary is considered by the law itself to be substantial enough to finance the entire election campaign of the candidate. For Congress, therefore, to require such amount to be posted in the form of surety bond, with the danger of forfeiting the same in the event of failure to obtain the required percentage of votes, unless there are more than four candidates, places a financial burden on honest candidates that will in effect disqualify some of them who would otherwise have been qualified and bona fide candidates.

The Constitution, in providing for the qualification of Congressmen, sets forth only age, citizenship, voting and residence qualifications. No property qualification of any kind is thereunder required. Since the effect of Republic Act 4421 is to require of candidates for Congress a substantial property qualification, and to disqualify those who do not meet the same, it goes against the provision of the Constitution which, in line with its democratic character, requires no property qualification for the right to hold said public office.

Freedom of the voters to exercise the elective franchise at a general election implies the right to freely choose from all qualified candidates for public office. The imposition of unwarranted restrictions and hindrances precluding qualified candidates from running is, therefore, violative of the constitutional guaranty of freedom in the exercise of elective franchise. It seriously interferes with the right of the electorate to choose freely from among those eligible to office whomever they may desire. ***

Republic Act 4421, moreover, relates a person's right to run for office to the degree of success he will show at the polls. A candidate, however, has no less a right to run when he faces prospects of defeat as when he is expected to win. Consequently, for the law to impose on said candidate — should he lose by

the fatal margin — a financial penalty not imposed on others would unreasonably deny him equal protection of the law. It is, also, in my opinion, unconstitutional on this account. (Sec. 1 [1], Art. III, Phil. Const.)

Nuisance candidates, as an evil to be remedied, do not justify the adoption of measures that would bar poor candidates from running for office. Republic Act 4421 in fact enables rich candidates, whether nuisance or not, to present themselves for election. Consequently, it cannot be sustained as a valid regulation of elections to secure the expression of the popular will.

I fully concur, therefore, with the majority opinion.

Regala, J., concurs.

NUISANCE CANDIDATES

Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

AUTHORITY TO PROVIDE QUALIFICATIONS

FLORES VS DRILON

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner,

vs.

HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

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

BELLOSILLO, J.:

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

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

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

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. — During the period of

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

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

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

In full, Sec. 7 of Art. IX-B of the Constitution provides:

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

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

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery

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

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

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

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

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.

IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-

President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. 11

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

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

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

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

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

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

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

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

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

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

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his treatise, Philippine Political

Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office."

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

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

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

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

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

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

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

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

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

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

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

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that

ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

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

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

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

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

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

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

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

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

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

SO ORDERED.

DISQUALIFICATIONS

DUMLAO VS COMELEC

G.R. No. L-52245 January 22, 1980

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,

vs.

COMMISSION ON ELECTIONS, respondent.

Raul M. Gonzales for petitioners

Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides:

Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof.

Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."

For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions:

Sec 7. Terms of Office — Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980.

.... (Batas Pambansa Blg. 51) Sec. 4.

Sec. 4. ...

Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein:

provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and

the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact.

... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).

Section 1. Election of certain Local Officials — ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52)

Section 6. Election and Campaign Period — The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution.

I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.

For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]).

It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases and controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:

"Section 2. The Commission on Elections shall have the following power and functions:

1) xxx

2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof.

B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress.

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer.

In the same vein, it has been held:

In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials.

Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547).

There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides:

a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).

And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads:

SEC. 4. Special disqualification. — In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.

Fernando, C.J., concurs and submits a brief separate opinion.

De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no

cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support

whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits once again running for public office. Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the

policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya and would in effect bar the electors of his province from electing him to said office in the January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vice-governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate of their choice for any elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial

review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional

infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits once again running for public office. Accordingly, the provision in question

was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya and would in effect bar the electors of his province from electing him to said office in the January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vice-governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement

benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate of their choice for any elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every

person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel

of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the

promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits once again running for public office. Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure

of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya and would in effect bar the electors of his province from electing him to said office in the

January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected.

To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vice-governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate of their choice for any elective office, no matter his age has always been recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action.

CONSTI PROVISIONS

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

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

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

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

CIVIL LIBERTIES UNION VS EXECUTIVE SECRETARY

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.

THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

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

vs.

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

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

Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:

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

not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman.

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

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

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

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

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.

83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any

salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one, the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides:

Sec. 7. . . . . .

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

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of

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

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

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

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

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad

exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

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

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

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

Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued.

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

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

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in

any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government."

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

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

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

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay

down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.

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

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

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19

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

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

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited.

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

The Secretaries of Finance and Budget cannot sit in the Monetary

Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit. 25

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

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

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

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries

of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.

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

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

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

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a

meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.

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

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

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

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

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof.

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

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

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

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

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

SO ORDERED.

Section 13. 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.

ADAZA VS PACANA

G.R. No. L-68159 March 18, 1985

HOMOBONO ADAZA, petitioner,

vs.

FERNANDO PACANA, JR., respondent

ESCOLIN, J.:

The issues posed for determination in this petition for prohibition with prayer for a writ of preliminary injunction and/or restraining order are: [1] whether or not a provincial governor who was elected and had qualified as a Mambabatas Pambansa [MP] can exercise and discharge the functions of both offices simultaneously; and [2] whether or not a vice-governor who ran for the position of Mambabatas Pambansa, but lost, can continue serving as vice-governor and subsequently succeed to the office of governor if the said office is vacated.

The factual background of the present controversy is as follows:

Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the January 30, 1980 elections. He took his oath of office and started discharging his duties as provincial governor on March 3, 1980. Elected vice-governor for said province in the same elections was respondent Fernando Pacana, Jr., who likewise qualified for and assumed said office on March 3, 1980. Under the law, their respective terms of office would expire on March 3, 1986.

On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984 Batasan Pambansa elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing elections, petitioner won by placing first among the candidates, while respondent lost.

Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he has discharged the functions of said office.

On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before President Ferdinand E. Marcos, 2 and started to perform the duties of governor on July 25, 1984.

Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to exclude respondent therefrom. He argues that he was elected to said office for a term of six years, that he remains to be the governor of the province until his term expires on March 3, 1986 as provided by law, and that within the context of the parliamentary system, as in France, Great Britain and New Zealand, a local elective official can hold the position to which he had been elected and simultaneously be an elected member of Parliament.

Petitioner further contends that respondent Pacana should be considered to have abandoned or resigned from the position of vice-governor when he filed his certificate of candidacy for the 1984 Batas Pambansa elections; and since respondent had reverted to the status of a mere private citizen after he lost in the Batas Pambansa elections, he could no longer continue to serve as vice-governor, much less assume the office of governor.

1. The constitutional prohibition against a member of the Batasan Pambansa from holding any other office or employment in the government during his tenure is clear and unambiguous. Section 10, Article VIII of the 1973 Constitution provides as follows:

Section 10 A member of the National Assembly [now Batasan Pambansa shall not hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations, during his tenure, except that of prime minister or member of the cabinet. ...

The language used in the above-cited section is plain, certain and free from ambiguity. The only exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or expediency of the said provision is a matter which is not within the province of the Court to determine.

A public office is a public trust. 3 It is created for the interest and the benefit of the people. As such, a holder thereof "is subject to such regulations and conditions as the law may impose" and "he cannot complain of any restrictions which public policy may dictate on his holding of more than one office." 4 It is therefore of no avail to petitioner that the system of government in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within the purely parliamentary system of government no incompatibility exists in the nature of the two offices under consideration, as incompatibility is understood in common law, the incompatibility herein present is one created by no less than the constitution itself. In the case at bar, there is no question that petitioner has taken his oath of office as an elected Mambabatas Pambansa and has been discharging his duties as such. In the light of the oft-mentioned constitutional provision, this fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt to discharge its functions.

2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private citizen, had no right to assume the governorship left vacant by petitioner's election to the Batasan Pambansa. He maintains that respondent should be considered as having abandoned or resigned from the vice-governorship when he filed his certificate of candidacy for the Batas Pambansa elections. The point pressed runs afoul of Batas Pambansa Blg. 697, the law governing the election of members of the Batasan Pambansa on May 14, 1984, Section 13[2] of which specifically provides that "governors, mayors, members of the various sangguniang or barangay officials shall, upon filing a certificate of candidacy, be considered on forced leave of absence from office." Indubitably, respondent falls within the coverage of this provision, considering that at the time he filed his certificate of candidacy for the 1984 Batasan Pambansa election he was a member of the Sangguniang Panlalawigan as provided in Sections 204 and 205 of Batas Pambansa Blg. 337, 5 otherwise known as the Local Government Code. The reason the position of vice-governor was not included in Section 13[2] of BP Blg. 697 is explained by the following interchange between Assemblymen San Juan and Davide during the deliberations on said legislation:

MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover only governors and members of the different sanggunians? Mayor, governors?

MR. SAN JUAN. Governors, mayors, members of the various sanggunian or barangay officials. A vice-governor is a member of the Sanggunian Panlalawigan.

MR. DAVIDE. All. Why don't we instead use the word, "Local officials?

MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...

MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-mayors?

MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They are covered by the provision on members of sanggunian. [Record of Proceedings, February 20, 1984, p. 92, Rollo]

Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa elections, he was acting within the law. His succession to the governorship was equally legal and valid, the same being in accordance with Section 204[2] [a] of the same Local Government Code, which reads as follows:

SECTION 204. Powers, Duties and Privileges:

1] x x x

2] He shall:

a] Assume the office of the governor for the unexpired term of the latter in the cases provided for in Section 48, paragraph 1 6 of this Code;

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

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

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

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

Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

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

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

SELECTION OF PUBLIC OFFICE

APPOINTMENT

ARTICLE VII, CONSTITUTION

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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

ARTICLE VI

Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Section 5.

1. The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

2. The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

3. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

4. Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

RA 7160

CHAPTER IIProvincial Officials in General

Section 463. Officials of the Provincial Government.

(a) There shall be in each province a governor, a vice-governor, members of the sangguniang panlalawigan, a secretary to the sangguniang panlalawigan, a provincial treasurer, a provincial

assessor, a provincial accountant, a provincial engineer, a provincial budget officer, a provincial planning and development coordinator, a provincial legal officer, a provincial administrator, a provincial health officer, a provincial social welfare and development officer, a provincial general services officer, a provincial agriculturist, and a provincial veterinarian.

(b) In addition thereto, the governor may appoint a provincial population officer, a provincial natural resources and environment officer, a provincial cooperative officer, a provincial architect, and a provincial information officer.

The appointment of a provincial population officer shall be optional in the province: Provided, however, That provinces which have existing population offices shall continue to maintain such offices for a period of five (5) years from the date of the effectivity of this Code, after which said offices shall become optional.

(c) The sangguniang panlalawigan may:

(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;

(2) Create such other offices as may be necessary to carry out the purposes of the provincial government; or

(3) Consolidate the functions of any office with those of another in the interest of efficiency and economy;

(d) Unless otherwise provided herein, heads of departments and offices shall be appointed by the governor with the concurrence of the majority of all the sangguniang panlalawigan members, subject to civil service law, rules and regulations. The sangguniang panlalawigan shall act on the appointment within fifteen (15) days from the date of its submission; otherwise the same shall be deemed confirmed;

(e) Elective and appointive provincial officials shall receive such compensation, allowances, and other emoluments as may be determined by law or ordinance, subject to the budgetary limitations on personal services prescribed under Title Five, Book II of this Code: Provided, That, no increase in compensation shall take effect until after the expiration of the full term of all the elective officials approving such increase.

CHAPTER IICity Officials in General

Section 454. Officials of the City Government.

(a) There shall be in each city a mayor, a vice-mayor, sangguniang panlungsod members, a secretary to the sangguniang panlungsod, a city treasurer, a city assessor, a city accountant, a city budget officer, a city planning and development coordinator, a city engineer, a city health officer, a city civil registrar, a city administrator, a city legal officer, a city veterinarian, a city social welfare and development officer, and a city general services officer.

(b) In addition thereto, the city mayor may appoint a city architect, a city information officer, a city agriculturist, a city population officer, a city environment and natural resources officer, and a city cooperatives officer.

The appointment of a city population officer shall be optional in the city: Provided, however, That cities which have existing population offices shall continue to maintain such offices for a period of

five (5) years from the date of the effectivity of this Code, after which said offices shall become optional.

(c) The sangguniang panlungsod may:

(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;

(2) Create such other offices as may be necessary to carry out the purposes of the city government; or

(3) Consolidate the functions of any office with those of another in the interest of efficiency and economy.

(d) Unless otherwise provided herein, heads of departments and offices shall be appointed by the city mayor with the concurrence of the majority of all the sangguniang panlungsod members, subject to civil service law, rules and regulations. The sangguniang panlungsod shall act on the appointment within fifteen (15) days from the date of its submission, otherwise the same shall be deemed confirmed.

(e) Elective and appointive city officials shall receive such compensation, allowances, and other emoluments as may be determined by law or ordinance, subject to the budgetary limitations on personal services prescribed under Title Five, Book II of this Code: Provided, That, no increase in compensation of the mayor, vice-mayor and sangguniang panlungsod members shall take effect until after the expiration of the full term of the said local officials approving such increase.

CHAPTER IIMunicipal Officials in General

Section 443. Officials of the Municipal Government. -

(a) There shall be in each municipality a municipal mayor, a municipal vice-mayor, sangguniang bayan members, a secretary to the sangguniang bayan, a municipal treasurer, a municipal assessor, a municipal accountant, a municipal budget officer, a municipal planning and development coordinator, a municipal engineer/building official, a municipal health officer and a municipal civil registrar.

(b) In addition thereto, the mayor may appoint a municipal administrator, a municipal legal officer, a municipal agriculturist, a municipal environment and natural resources officer, a municipal social welfare and development officer, a municipal architect, and a municipal information officer.

(c) The sangguniang bayan may:

(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;

(2) Create such other offices as may be necessary to carry out the purposes of the municipal government; or

(3) Consolidate the functions of any office with those of another in the interest of efficiency and economy.

(d) Unless otherwise provided herein, heads of departments and offices shall be appointed by the municipal mayor with the concurrence of the majority of all the sangguniang bayan members, subject to civil service law, rules and regulations. The sangguniang bayan shall act on the

appointment within fifteen (15) days from the date of its submission; otherwise, the same shall be deemed confirmed.

(e) Elective and appointive municipal officials shall receive such compensation, allowances and other emoluments as may be determined by law or ordinance, subject to the budgetary limitations on personal services as prescribed in Title Five, Book Two of this Code: Provided, That no increase in compensation of the mayor, vice-mayor, and sangguniang bayan members shall take effect until after the expiration of the full term of all the elective local officials approving such increase.

CHAPTER IIBarangay Officials and Offices

Section 387. Chief Officials and Offices. -

(a) There shall be in each barangay a punong barangay, seven (7) sangguniang barangay members, the sangguniang kabataan chairman, a barangay secretary, and a barangay treasurer.

(b) There shall also be in every barangay a lupong tagapamayapa. The sangguniang barangay may form community brigades and create such other positions or offices as may be deemed necessary to carry out the purposes of the barangay government in accordance with the needs of public service, subject to the budgetary limitations on personal services prescribed under Title Five, Book II of this Code.

CASE AUTHORITY: BINAMIRA VS GARRUCHO

G.R. No. 92008 July 30, 1990

RAMON P. BINAMIRA, petitioner, vs. PETER D. GARRUCHO, JR., respondent.

CRUZ, J.:

In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General Manager of the Philippine Tourism Authority from which he claims to have been removed without just cause in violation of his security of tenure.

The petitioner bases his claim on the following communication addressed to him by the Minister of Tourism on April 7, 1986:

MEMORANDUM TO: MR. RAMON P. BINAMIRA

You are hereby designated General Manager of the Philippine Tourism Authority, effective immediately.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office.

(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board

Pursuant thereto, the petitioner assumed office on the same date.

On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the Board of Directors of the PTA, which included Binamira as Vice-Chairman in his capacity as General Manager. This approval was given by the President on the same date. 1

Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such by various government offices, including the Office of the President.

He complains, though, that on January 2, 1990, his resignation was demanded by respondent Garrucho as the new Secretary of Tourism. Binamira's demurrer led to an unpleasant exchange that led to his filing of a complaint against the Secretary with the Commission on Human Rights. But that is another matter that does not concern us here.

What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following memorandum, 2 copy furnished Binamira:

4 January 1990

MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism

It appearing from the records you have submitted to this Office that the present General Manager of the Philippine Tourism Authority was designated not by the President, as required by P.D. No. 564, as amended, but only by the Secretary of Tourism, such designation is invalid. Accordingly, you are hereby designated concurrently as General Manager, effective immediately, until I can appoint a person to serve in the said office in a permanent capacity.

Please be guided accordingly.

(Sgd.) CORAZON C. AQUINO

cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila

Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the petitioner filed this action against him to question his title. Subsequently, while his original petition was pending, Binamira filed a supplemental petition alleging that on April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager of the Philippine Tourism Authority. Capistrano was impleaded as additional respondent.

The issue presented in this case is starkly simple.

Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:

SECTION 23-A. General Manager-Appointment and Tenure. — The General Manager shall be appointed by the President of the Philippines and shall serve for a term of six (6) years unless sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as such until his successor shall have been appointed and qualified. (As amended by P.D. 1400)

It is not disputed that the petitioner was not appointed by the President of the Philippines but only designated by the Minister of Tourism. There is a clear distinction between appointment and designation that the petitioner has failed to consider.

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. 3 When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, 4 as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. 5 It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. The reason is that the decree clearly provides that the appointment of the General Manager of the Philippine Tourism Authority shall be made by the President of the Philippines, not by any other officer. Appointment involves the exercise of discretion, which because of its nature cannot be delegated. Legally speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of the President. The appointment (or designation) of the petitioner was not a merely mechanical or ministerial act that could be validly performed by a subordinate even if he happened as in this case to be a member of the Cabinet.

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him, he cannot delegate his duties to another. 6

In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another. 7

Indeed, even on the assumption that the power conferred on the President could be validly exercised by the Secretary, we still cannot accept that the act of the latter, as an extension or "projection" of the personality of the President, made irreversible the petitioner's title to the position in question. The petitioner's conclusion that Minister Gonzales's act was in effect the act of President Aquino is based only on half the doctrine he vigorously invokes. Justice Laurel stated that doctrine clearly in the landmark case of Villena v. Secretary of the Interior, 8 where he described the relationship of the President of the Philippines and the members of the Cabinet as follows:

... all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.

The doctrine presumes the acts of the Department Head to be the acts of the President of the Philippines when "performed and promulgated in the regular course of business," which was true of the designation made by Minister Gonzales in favor of the petitioner. But it also adds that such acts shall be considered valid only if not 'disapproved or reprobated by the Chief Executive," as also happened in the case at bar.

The argument that the designation made by Minister Gonzales was approved by President Aquino through her approval of the composition of the Board of Directors of the PTA is not persuasive. It must be remembered that Binamira was included therein as Vice- Chairman only because of his designation as PTA General Manager by Minister Gonzales. Such designation being merely provisional, it could be recalled at will, as in fact it was recalled by the President herself, through the memorandum she addressed to Secretary Garrucho on January 4, 1990.

With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground. His designation being an unlawful encroachment on a presidential prerogative, he did not acquire valid title thereunder to the position in question. Even if it be assumed that it could be and was authorized, the designation signified merely a temporary or acting appointment that could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason).i•t•c-aüsl In either case, the petitioner's claim of security of tenure must be rejected.

The Court sympathizes with the petitioner, who apparently believed in good faith that he was being extended a permanent appointment by the Minister of Tourism. After all, Minister Gonzales had the ostensible authority to do so at the time the designation was made. This belief seemed strengthened when President Aquino later approved the composition of the PTA Board of Directors where the petitioner was designated Vice-Chairman because of his position as General Manager of the PTA. However, such circumstances fall short of the categorical appointment required to be made by the President herself, and not the Minister of Tourism, under Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never acquired valid title to the disputed position and so has no right to be reinstated as General Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Fernan, C.J., took no part.

PERMANENT VS TEMPORARY

ACTING APPOINTMENT

CASES: MOROHOMBSAR VS ALONTO

G.R. No. 93711 February 25, 1991

DR. EMILY M. MAROHOMBSAR, petitioner, vs. AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON BATARA, respondents.

GUTIERREZ, JR., J.:p

The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the respondent President may be removed from office even without cause.

On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External Studies.

On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs.

On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that he has decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs which position is under the administrative staff of the respondent MSU President. The petitioner, on the same date, answered that she cannot accept the position since she has already started several projects in the OVCAA which she wants to see through.

The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in this case, as Officer-in-Charge of the OVCAA.

The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent President.

On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus.

On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging that said respondent, in violation of the temporary restraining order issued by this Court submitted Special Order No. 158-P to the MSU Board of Regents for approval.

The petitioner asserts that her appointment being permanent, she can be removed only after hearing and for cause.

Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows:

RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the Board of Regents the following Special Orders as amended/corrected are hereby confirmed:

A. DESIGNATIONS

A.1 Major designations

xxx xxx xxx

9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an honorarium in accordance with the approved policies of the University, subject to accounting and auditing rules and regulations, effective January 2, 1989 and shall remain in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied)

It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment in an acting capacity extended and received without any protest or reservation and who acts thereunder for a considerable time cannot later be heard to say that the appointment was, in reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965])

There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case.

The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)

The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piñero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle.

In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as Vice-President for External Studies.

About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice-Chancellor for Academic Affairs.

The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss by the petitioner of her permanent status.

There are reasons which indicate that these maneuverings by the respondent President cannot be characterized as bona fide.

Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:

Personnel Matters. In accordance with the policies and rules prescribed by the Board, the specific powers of the President include the following (delegated powers)

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22. Designation of any Dean, Director, or Department Chairman in acting capacity or any Officer-in-Charge for any of these positions, for a period of less than one year, such designation being made without additional compensation for the position designated except the honorarium attached to said position; PROVIDED, That the President shall report the designation in the next regular meeting after winch the designation shall be null and void unless otherwise renewed.

The power to designate is vested in the MSU President. The designation must be less than one year. It must be reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied.

On the other hand, the power to appoint is vested in the Board of Regents as follows:

Sec. 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of administration and the exercise of the power of the corporation;

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(e) To appoint, on the recommendation of the President of the University, professor, instructors, lecturers and other employees of the University. . . . — MSU Charter, RA 1387

If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted."

When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. An ad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment.

The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents.

The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting appointments were submitted for approval or confirmation:

1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive Vice-President . . . ;

2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice President for Academic Affairs . . . ;

3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting Assistant Vice-President for Academic Affairs . . . ;

4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning and Development . . . ;

5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant Vice President for Planning and Development . . . ;

6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the Office of the Vice-President for Administration and Finance . . . ;

7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President for Administration and Finance . . . ;

8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;

10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for Administration and Finance . . . ;

11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor for Research and Extension . . . (Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. They state:

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Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the reason why petitioner's designation as Acting VCAA can not be deemed a regular or permanent appointment because, if it were so, the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. Deans and Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position ( id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned.

The attempt of the respondent to solve the problem by placing the petitioner in his own administrative staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this capacity from 1975 to 1978 after which she became Vice-President for External Studies in 1982. The proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to stay in her present position. She thanked the respondent but stated she would not be effective in the new position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There are transfers which appear to be promotions or lateral movements but are in truth demotions. There is no showing that the interest of the service would be served if the proffered appointment would be forced on her.

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cariño opined, and the Court agrees with him, that the petitioner may not be removed from the disputed office by the MSU President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No. 158-P issued by the respondent president designating respondent Batara as officer in-charge of the same office was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp. 119-120)

The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to the Board of Regents for approval. But such submission was made after the Court already issued its temporary restraining order and consequently, his action constituted contempt of Court. Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too harsh a remedy. The respondent President is, nevertheless, admonished for his action. When this Court issues a restraining order, it must be obeyed.

WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent Alonto for contempt is DENIED but the respondent is admonished to faithfully heed court orders in the future. The Temporary Restraining Order issued by this Court on June 21, 1990 is made PERMANENT.

SO ORDERED.

MATURAN VS MAGLANA

G.R. No. L-52091 March 29, 1982 TERESO V. MATURAN, petitioner-appellant, vs. Mayor SANTIAGO MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO DUTERTE, Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN LEYTE, respondents-appellees.

DE CASTRO, J.:

This case was certified to this Court by the Court of Appeals pursuant to its resolution dated October 30, 1979, the issue raised herein being purely legal, which is the interpretation of Presidential Decree No. 12-A and Letter of Instruction No. 14 in relation to the present case.

Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965 with a compensation of P540.00 per annum. On October 1, 1967 he was promoted to the rank of police sergeant at P720.00 per annum. On October 8, 1968 and July 1, 1969 petitioner's salary was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was renewed. Likewise on July 1, 1971 his provisional appointment was renewed with an increase in pay in the amount of P2,640.00 per annum.

On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from office because of two pending criminal cases against him, namely Criminal Case No. 236, for falsification of public document by making untruthful statement in the narration of facts, and Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent Vice-Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together with Chief of Police Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations pursuant to the Letter of Instruction No. 14 of the President of the Philippines. Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on January 19, 1973 and petitioner was accordingly informed thereof.

In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that Letter of Instruction No. 14 does not apply to him.

In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and November 5, 1973, respectively.

In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner that due to the dismissal of the aforesaid criminal cases, the latter's preventive suspension has been lifted and petitioner was directed to report for duty to his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of Police Francisco Duterte refused to accept the former in the police force.

Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply letter dated August 13, 1974 the Deputy Executive Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of his suspension as directed in the National Police Commission's letter dated January 12, 1974 is no longer feasible, the same having been rendered moot and academic; that said office had occasion to rule that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to include both local and national officials.

Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May 21, 1974 petitioner filed a petition for mandamus with claim for back salaries, traveling expense and damages before the Court of First Instance of Southern Leyte, Branch III.

It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of paragraph 7 of Presidential Decree No. 12-A which provides:

7. Members of the police force who have been preventively suspended shall, upon exoneration be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension;

that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A which was promulgated on October 4, 1972 and which governs policemen with pending cases; and that Letter of Instruction No. 14 under whose provisions petitioner was made to resign is not applicable to policemen.

In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely entered in his duly sworn information sheet that he is a high school graduate of the University of Manila during the school year 1954-55, but in his Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he feloniously alleged and/or entered therein that he is a graduate of the Pana-on Academy in the school year 1950-51 when in truth he was only a second year high school student; that petitioner, who has voluntarily resigned, needs a new appointment and has to meet the qualifications required by law among which, are, that he must be at least a high school graduate and not over 33 years of age; that petitioner falls short of these requirements; and that petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes got drunk while on duty.

On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement is not the proper remedy. The court also said that the evidence of conflicting entries on petitioner's two information sheets have not been denied or rebutted, hence the preponderance of evidence is against the petitioner that he is not a high school graduate, as he could not have graduated in two high schools, one in the University of Manila during the school year 1954-55 and the other at the Pana-on Academy during the school year 1950-51. Lastly, the trial court ruled that since all petitioner's appointment were provisional, he can be removed at any time by the appointing power, Mayor Maglana.

On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of respondents to submit their brief, the case was submitted for decision on November 16, 1976.

Petitioner made the following assignment of errors:

FIRST ERROR

THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE LEGAL AND VALID;

SECOND ERROR

THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR MAGLANA;

THIRD ERROR

THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY; and

FOURTH ERROR

THE COURT BELOW ERRED IN DISMISSING THIS CASE AND DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND TRAVELING EXPENSES.

Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the power to dismiss or remove a member of the police force has been transferred from the Mayor to the Police Commission. Hence, the acceptance of petitioner's resignation by respondent Mayor on January 19, 1973 is null and void because the latter is no longer clothed with authority to dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses that Letter of Instruction No. 14 under whose provisions he was made to resign is not applicable to him as said Instruction covers only officials and employees with pending cases excluding policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained on October 10, 1974 to justify his reappointment.

Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation Boards in the Police Commission to review and dispose of all administrative cases of city and municipal forces referred to the Commission. On October 4, 1972 Presidential Decree 12-A was promulgated providing for the procedure to be followed in case an administrative charge is filed against any member of the local police agency or when a member of the police force is accused in court of any felony or violation of law. Nowhere in the provisions of said Presidential Decrees show that the power to dismiss or remove has been transferred from the Mayor to the Police Commission as contended by petitioner. It was only on August 8, 1974 when such power was removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal police forces in an the municipalities of the province of Southern Leyte. Presidential Decree No. 531 states:

SEC. 6. Power of administrative control and supervision. — Administrative control and supervision over the several police and fire departments and jails composing each of the Integrated Police Forces herein constituted shall, prior to the transfer provided for in Section 7 hereof, remain with the offices, agencies and officials in which said power is vested in accordance with existing laws; ... Accordingly, administrative matters, such as appointment promotion suspension separation and other disciplinary action ... and such other matters pertaining to personnel administration which are currently vested in and exercised by other officials pursuant to existing laws, rules and regulations shall remain with said officials, ...

SEC. 7. Administrative control and supervision to be transferred to the Philippine Constabulary. — After one year, but not later than two years, from the effectivity of this Decree, the power and administrative control and supervision provided for in Section 6 hereof shall be taken over and exercised by the Philippine Constabulary. ...

It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on January 19, 1973 the latter still had the power to dismiss or remove the former.

Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service eligibility for any position in the government. Such lack of a civil service eligibility makes his appointment temporary 1 and without a definite term and is dependent entirely upon the pleasure of the appointing power. 2 Although indicated as provisional and approved under Section 24 (c) 3 of Republic Act 2260 the petitioner's appointment did rot acquire the character of provisional appointment because of his lack of appropriate civil service eligibility for the position of municipal policeman. The Civil Service Commission cannot even legally approve his appointment as provisional as this act would constitute an unwarranted invasion of the discretion of the appointing power. 4 If the approval of his appointment as provisional under Section 24 (c) of Republic Act 2260 did not make it so, the fact remains that his appointment was temporary which could be terminated without any need to show that the termination was for cause. 5

The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of no moment. At the time he received his appointment, as aforestated, petitioner had no eligibility. As such what is required is a new appointment, not merely reinstatement. But even then, he cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary and the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position filled. 6

WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby affirmed. No costs.

SO ORDERED.

ACHACOSO VS MACARAIG

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitioner vs. CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents. 

CRUZ, J:p

The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not entitled to the guaranty because he is not a career official. These are the legal issues. The facts are as follows:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the President of the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other government officials, he filed a courtesy resignation. This was accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990, he protested his replacement and declared he was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President's directive. On the same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner. Achacoso was informed thereof the following day and was again asked to vacate his office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30, 1990. He then came to this Court for relief.

In this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his duties as Administrator of the POEA.

Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is one of the characteristics of the Career Service as distinguished from the Non-Career Service. 1 Claiming to have the rank of undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in the Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the prerogatives of the President" to require them to submit courtesy resignations. Such courtesy resignations, even if filed, should be disregarded for having been submitted "under duress," as otherwise the President would have the power to remove career officials at pleasure, even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on Elections, 2 where we observed that "to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish" and that "a courtesy resignation cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position." He concludes that as his removal was illegal, there was no vacancy in the disputed office to which respondent Sarmiento could have been validly appointed.

In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service position but submits that the petitioner himself is not a career executive service official entitled to security of tenure. He offers the following certification from the Civil Service Commission to show that the petitioner did not possess the necessary qualifications when he was appointed Administrator of the POEA in 1987:

C E R T I F I C A T I O N

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not participated in a Career Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to a rank in the CES and is not therefore a member of the Career Executive Service.

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(Sgd.) ELMOR D. JURIDICOExecutive Director

Reference is also made to the following rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:

c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of the bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, 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 qualifies in such examination . (Emphasis supplied.)

The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment, he came under the exception to the above rule and so was subject to the provision that he "shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher rank until he qualifies in such examination." Not having taken that examination, he could not claim that his appointment was permanent and guaranteed him security of tenure in his position.

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 is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. 3 The appointment extended to him cannot be regarded as permanent even if it may be so designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee. 4 The person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official relations known in the law of public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because removal imports the separation of the incumbent before the expiration of his term. 5 This is allowed by the Constitution only when it is for cause as provided by law. The acting appointee is separated precisely because his term has expired. Expiration of the term is not covered by the constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being no need the show that the termination is for cause. 6

The petitioner contends that his appointment was really intended to be permanent because temporary appointments are not supposed to exceed twelve months and he was allowed to serve in his position for more than three years. This is unacceptable. Even if that intention were assumed, it would not by itself alone make his appointment permanent. Such an appointment did not confer on the petitioner the appropriate civil service eligibility he did not possess at the time he was appointed, nor did it vest him with the right to security of tenure that is available only to permanent appointees.

The case of Luego vs. Civil Service Commission 7 is not applicable because the facts of that case are different. The petitioner in Luego was qualified and was extended a permanent appointment that could not be withdrawn on the ground that it was merely temporary. In the case at bar, the petitioner was not eligible and therefore could be appointed at best only in a temporary capacity. The other cases he cites,

viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 8 Palma-Fernandez vs. De la Paz, 9 and Dario vs. Mison, 10 are also not pertinent because they also involved permanent appointees who could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been a graceful way of withdrawing him from his office with all the formal amenities and no asperity or discord if only he had not chosen to contest it. But it was his right to do so, of course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

ROMUALDEZ III VS CIVIL SERVICE COMMISSION

G.R. Nos. 94878-94881 May 15, 1991

NORBERTO A. ROMUALDEZ III, petitioner, vs. CIVIL SERVICE COMMISSION* and THE PHILIPPINE COCONUT AUTHORITY, respondents.

GANCAYCO, J.:p

By this petition the intervention of public respondent Civil Service Commission (SCS) is sought to compel public respondent Philippine Coconut Authority (PCA) to reinstate and extend a permanent appointment to petitioner as Deputy Administrator for Industrial Research and Market Development.

Petitioner was appointed and served as a Commercial Attache of the Department of Trade continuously for twelve years from September, 1975 to August 30, 1987. His civil service eligibilities are: Patrolman of the City of Manila (1963 CS Exam) and a Commercial Attache (1973 CS Exam).

On September 1, 1987, he was transferred to the respondent PCA whereby he was extended an appointment as Deputy Administrator for Industrial Research and Market Development. 1 The nature of his appointment was "reinstatement" and his employment status was "temporary," for the period covering September 1, 1987 to August 30, 1988. His appointment was renewed for another six months from September 1, 1988 to February 28, 1989 also on a "temporary" status and subject to certain conditions to which petitioner agreed.

When his appointment expired on February 28, 1989, the Governing Board did not renew the same so he was promptly informed thereof by the Acting Chairman of the Board of the PCA, Apolonio V. Bautista. 2

On February 6, 1990, petitioner appealed to respondent CSC He requested reinstatement to his previous position in PCA and in support of the request, he invoked the provisions of (CSC) Memorandum Circular No. 29 dated July 19, 1989. 3

Respondent CSC denied petitioner's request for reinstatement on May 2, 1990 by way of its Resolution No. 90-407, holding that CSC Memorandum Circular No. 29 was not applicable to petitioner's case because it took effect on July 19, 1989 when petitioner had long been out of the government service since February 28, 1989 and that his reappointment was essentially discretionary on the part of the proper appointing authority.

On May 11, 1990, respondent PCA appointed Mr. Roman Santos to the contested position.

Petitioner moved for a reconsideration of Resolution No. 90-407 but it was denied by respondent CSC in Resolution No. 90-693 dated July 31, 1990. 4

Hence, petitioner filed this petition for certiorari, prohibition and mandamus with a prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order, raising the following issues—

l. Public Respondent Civil Service Commission committed grave abuse of discretion amounting to capricious, whimsical, and despotic refusal to perform a legal/constitutional duty to enforce the Civil Service Law and/or constituting non-feasance/mis-feasance in office in issuing Resolution Nos. 90-407 and 90-693;

2. The legal issue of the applicability of Civil Service Commission Circular No. 29, Series 1989 on the appointment of petitioner as PCA Deputy Administrator for Industrial Research and Market Development;

3. The legal issue as to whether it is mandatory for an appointing authority to extend permanent appointments to selected appointees with corresponding civil service eligibilities;

4. Public respondent Civil Service Commission committed grave abuse of discretion amounting to lack of jurisdiction and/or non-feasance/misfeasance of official functions in not exercising its authority to enforce/implement the Civil Service Law and in not affording petitioner who belongs to the career service in the government the protective security of tenure and due process clause of the Philippine 1987 Constitution as well as the Civil Service Law under P.D. 807;

5. Public respondent Philippine Coconut Authority unlawfully and maliciously deliberately failed/refused to strictly comply with the provision of par. a, Section 25 of P.D. 807 in the matter of extending permanent appointment to petitioner constituting likewise grave abuse of discretion on the part of public respondent Civil Service Commission amounting to gross ignorance of the law in not correcting/rectifying such malicious and deliberate non-compliance, in view of the mandatory directive of Section 8, Rule III of the Civil Service Rules on Personnel Actions and Policies. 5

The petition is devoid of merit.

No doubt the appointment extended to petitioner by respondent PCA as PCA Deputy Administrator for Industrial Research and Market Development was temporary. Although petitioner was formerly holding a permanent appointment as a commercial attache, he sought and accepted this temporary appointment to respondent PCA.

His temporary appointment was for a definite period and when it lapsed and was not renewed on February 28, 1987, he complains that there was a denial of due process. This is not a case of removal from office. Indeed, when he accepted this temporary appointment he was thereby effectively divested of security of tenure. 6 A temporary appointment does not give the appointee any definite tenure of office but makes it dependent upon the pleasure of the appointing power. 7 Thus, the matter of converting such a temporary appointment to a permanent one is addressed to the sound discretion of the appointing authority. Respondent CSC cannot direct the appointing authority to make such an appointment if it is not so disposed. 8

The duty of respondent CSC is to approve or disapprove an appointment. Its attestation is limited to the determination whether the appointee possesses the required qualifications for the position as the appropriate civil service eligibility. 9

Petitioner invokes CSC Memorandum Circular No, 29, S. 1989, dated July 19, 1989 which provides—

(a) A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (Section 25 (a), P.D. 807).

(b) While the appointing authority is given a wide latitude of discretion in the selection of personnel for his department or agency, in the exercise of this discretion he shall be guided by and subject to the Civil Service Law and Rules. 10

As aptly observed by respondent CSC said circular cannot be given retrospective effect as to apply to the case of petitioner who was separated from the service on February 28, 1989. And even if the said circular may apply to petitioner's situation, under said circular it is recognized that "the appointing authority is given a wide latitude of discretion in the selection of personnel of his department or agency." Respondent PCA exercised its discretion and opted not to extend the appointment of petitioner. It cannot be compelled to extend petitioner's appointment, much less can it be directed to extend a permanent appointment to petitioner. A discretionary duty cannot be compelled by mandamus. 11 More so when as in this case petitioner has not shown a lawful right to the position. If the legal rights of the petitioner are not well-defined, clear and certain, the petition must be dismissed. 12

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

DESIGNATION

SEVILLA VS CA

G.R. No. 88498 June 9, 1992

GENEROSO R. SEVILLA, petitioner, vs. THE HON. COURT OF APPEALS and NERITO L. SANTOS, respondents.

GRIÑO-AQUINO, J.:

May an officer who was appointed to an office in an "acting" capacity, bring a quo warranto action against the permanent appointee to the position?

The petitioner has been in the government service since 1949. His last appointment was last Assistant City Engineer of Palayan City which he discharged until he was designated Acting City Engineer of Cabanatuan City by President Ferdinand E. Marcos on May 2, 1981. He unhesitatingly assumed the latter position and discharged its functions and responsibilities until "People Power" and the EDSA Revolution intervened. The subsequent twists and turns in his professional career are recited in the decision dated May 31, 1989 of the Coourt of Appeals in CA- G.R. SP No. 14489 as follows:

The advent of the 1986 Revolution and the 1987 Freedom Constitution spelled changes and upheavals particularly within the Career Civil Service. On August 18, 1986, the then Officer-in charge (OIC Mayor) of Cabanatuan City, Cesar Vergara, appointed defendant-appellant Santos as city engineer of Cabanatuan City, and on August 28, 1986, defendant-appellant Santos assumed the position of city engineer. On that very same day, a memorandum informing petitioner-appellee Sevilla of the appointment of defendant-appellant Santos was sent by then OIC Mayor. As petitioner-appellee Sevilla was on leave at the time, the memorandum was received on his behalf by Anita de

Guzman, the administrative officer of the Department of Public Works and Highways (DPWH) Office of Cabanatuan City, where petitioner-appellee Sevilla also holds office.

A few months later, or on November 14, 1986, petitioner-appellee Sevilla was designated by then Minister Rogociano Mercado of the MPWH as acting district engineer of Pasay City. Petitioner-appellee Sevilla served in that capacity until he was removed from that office of the new Secretary of the DPWH on February 3, 1987. This was what precipitated the present controversy.

Petitioner-appellee then returned to Cabanatuan City. On March 27, 1987, he filed a petition for quo warranto against defendant-appellant Santos, which was docketed as Civil Case No. 879-134 (AF) before the Regional Trial Court of Cabanatuan City, Branch 27. On January 29, 1988, the lower rendered the impugned decision reinstating petitioner-appellee Sevilla and entitling him payment of vacation and sick leaves for the duration of his absence. The dispositive part of that decision reads:

WHEREFORE, judgement is hereby rendered for petitioner and against the respondent, to wit:

a. Ousting and excluding respondent Nerito Santos from the position of City Engineer;

b. Declaring petitioner Generoso Sevilla as the person lawfully entitled to hold aforesaid position; and

c. Declaring petitioner Generoso Sevilla as entitled to payment of vacation and sick leave during the period he was prevented from rendering service by reason of this case. (pp. 53-54, Rollo.)

On August 18, 1986, the OIC Mayor of Cabanatuan City, Cesar Vergara, appointed Nerito L. Santos as the new city engineer of Cabanatuan City. Santos assumed the position on August 28 1986. On the same day, a memorandum was addressed to Sevilla informing him of Santos' appointment as city engineer of Cabanatuan City. Anita de Guzman, administrative officer of the Department of Public Works and Highways (DPWH) unit in Cabanatuan City received the notice for Sevilla who was on leave on that time.

On November 14, 1986, the Minister of Public Works and Highways, Rogaciano Mercado, designated Sevilla as Acting District Engineer of Pasay City. He served in that capacity for a little over two months or until he was removed on February 3, 1987 by the new DPWH Secretary, Jesus Jayme, forcing him to return to the Cabanatuan City Engineer's Office which, however, was already occupied by Nerito Santos.

On March 27, 1987, Sevilla filed a petition for quo warranto against Santos. It was docketed as Civil case No. 8795-134 (AF) in the Regional Trial Court of Cabanatuan City — Branch 27. On June 8, 1987, the complaint was amended to include a petition for mandamus against the new OIC Mayor Evangelina Vergara, but the mandamus petition was dismissed by the trial court, which proceeded to hear the quo warranto petition only.

In his quo warranto petition, Sevilla argued that, being the presidential appointee, he could not be removed from office by an OIC mayor. And, even supposing that the OIC mayor had such authority, his (Sevilla's) separation from office was illegal because none of the grounds for the separation/replacement of public officials and employees set forth in Section 3 of Executive Order No. 17 dated May 28, 1986, was cited to justify the termination of his service. Section 3 of E.O. No. 17 provides:

Section 3. The following shall be the grounds for separation/replacement of personnel:

1. Existence of the case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions:

4. Misuse of public office for partisan political purposes:

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.

On January 29, 1988, the lower court rendered a decision reinstating Sevilla as acting City Engineer of Cabanatuan City with right to payment of vacation and sick leaves for the duration of his absence (pp. 26-34, Rollo).

Santos appealed the decision to the Court of Appeals (CA-G.R. SP No. 14489) alleging that:

1. Sevilla has no legal standing to bring an action for quo warranto, because his designation to the disputed position was in an acting capacity only:

2. his acceptance of another position in Pasay City precludes him from filing a quo warranto action; and

3. the OIC mayor had legal authority to appoint Santos as city engineer.

In a decision dated May 31, 1989 (pp. 53-57, Rollo), the Court of Appeals set aside the lower court's decision and entered a new one, dismissing the petition for quo warranto. The Court of Appeals held that by accepting another office. Sevilla in effect voluntarily surrendered his former office, and was thereby precluded from maintaining a quo warranto action against Santos. When he accepted the position in Pasay City, he lost his right to the position in Cabanatuan City. The Court ruled that Santos' appointment was valid because it as confirmed by Minister Rogaciano Mercado of the Ministry of Public Works and Highways.

Sevilla filed this petition for review alleging that the Court of Appeals erred:

1. in not applying the provisions of Executive Order No. 17;

2. in not considering his appointment as acting city engineering of Cabanatuan City as a specie of permanent appointment covered by civil service security of tenure and outside the doctrine enunciated in Austria vs. Amante (79 Phil. 790) cited by the respondent court as basis of its decision; and

3. in declaring that he "voluntarily surrendered his former office," (p. 1, Rollo) instead of finding that he merely complied with the memorandum of the Minister of Public Works and Highways assigning him in Pasay City.

The petition is devoid of merit.

An "acting" appointment is merely temporary, one which is good only until another appointment is made to take its place (Austria vs. Amante. 79 Phil. 784). Hence, petitioner's right to hold office as " Acting City

Engineer of Cabanatuan City" was merely temporary. It lapsed upon the appointment of Nerito Santos as the permanent city engineer of Cabanatuan City on August 18, 1986.

Petitioner was the incumbent city engineer of Palayan City when he was designated as Acting City Engineering of Cabanatuan City. There is a difference between an appointment an appointment and a designation. Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election (Santiago vs. Commission on Audit, 199 SCRA 125; Political Law Review by Gonzales, pp. 184-185). A mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. Thus did this Court made such a distinction:

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official . . . It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. . . Appointment involves the exercise of discretion, which because of its nature cannot be delegated." (Binamira vs. Garrucho, 188 SCRA 158.)

Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City merely imposed upon him the additional function of the City Engineer of Cabanatuan City on top of his regular duties as City Engineer of Palayan City. He may claim security of tenure as City Engineer of Palayan City but he may not lay such a claim to the position of City Engineering of Cabanatuan City for he holds no appointment to the latter office.

The power of appointment is essentially discretionary. Its exercise may not be controlled by the courts. The choice of an appointee from among qualified candidates or applicants 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 office concerned for he is familiar with the organizational structure and environmental circumstances within which the appointee must function. (Lusterio vs. Intermediate Appellate Court, 199 SCRA 255.) The appointing authority in this particular case is the Mayor of Cabanatuan City (B.P. Blg. 337 or the Local Government Code which provides that "the city engineer shall be appointed by the city mayor, subject to civil service law, rules and regulations"). The appointment of Santos by OIC City Mayor Vergara was valid and binding for it was confirmed by the Minister of Public Works and Highways, and approved by the Civil Service Commission.

An action for quo warranto may be commenced by "a person claiming to be entitled to a public office or position usurpred or unlawfully held or exercised by another" (Sec. 6, Rule 66, Rules of Court). Inasmuch as the petitioner does not aver that he is entitled to the office of City Engineer of Cabanatuan City and that Nerito L. Santos is a mere usurper of said office, the Court of Appeals committed no reversible error

in dismissing petitioner's action for quo warranto. Petitioner's ouster upon, and by virtue of, Santos' appointment as City Engineer of Cabanatuan City, was not illegal for the petitioner's right to discharge the functions of Acting City Engineer of Cabanatuan City was extinguished when a permanent appointment to the same office was made in favor of the private respondent, Engineer Nerito L. Santos.

WHEREFORE, the petition for review is DENIED. The decision of the Court of Appeals dismissing petitioner's action for quo warranto is AFFIRMED. Costs against the petitioner.

SO ORDERED.

ORCULLO VS CSC

G.R. No. 138780       May 22, 2001

NORBERTO ORCULLO, JR., petitioner, vs. CIVIL SERVICE COMMISSION and COORDINATING COUNCIL OF THE PHILIPPINE ASSITANCE PROGRAM, respondents.

KAPUNAN, J.:

Petitioner Norberto A. Orcullo, jr. was hired as Project Manager IV by the Coordinating Council of the Philippine Assistance Program (CCPAP)-BOT Center effective march 11, 1996. His employment was contractual and co-terminous with the said project which was to end on January 30, 2000.1 On September 23, 1996 or six (6) months from his assumption to office, petitioner received a Memorandum, dated September 20, 1996, from one Jorge M. Briones, Assistance Director of CCPAP, terminating petitioner's contractual employment with said agency effective September 30, 1996.2

In a Letter dated September 20, 1996, Undersecretary Francisco F. del Rosario, Executive Director of CCPAP, confirmed petitioner's termination as project manager of CCPAP.

Aggrieved by his dismissal, petitioner appealed the same to the Civil Service Commission (CSC).

On April 2, 1997, the respondent CSC issued resolution No. 972309 dismissing petitioner's appeal. The CSC found that:

xxx the appointment of Orcullo is contractual and co-terminous with the Philippine Assistance Program Support Project and that it carries the stipulated condition "Unless terminated sooner." The latter condition has not been qualified by any safeguard. Appellant Orcullo, when he accepted said contractual-co-terminous anytime. He is, thus, not protected by the security of tenure clause of the Constitution. The contract is the law between the parties. And whatever is stipulated therein governs the relationship between the parties. Said stipulations in the contract may include the mode or manner of separations. And the cause therefore includes and is not proscribed to derogatory record, misbehavior or incompetence or hostile attitudes. In the instant case, appellant was separated from the service particularly for unsatisfactory performance. (Underscoring ours)

On the issue of the proper official who should effect such termination, the next lower official who should effect such termination, the next lower official of the Center may do so. In this case, said separation was later validated by the confirmation of the head office.3

Petitioner filed a motion for reconsideration of the above resolution. On June 17, 1997, the CSC denied said motion in its Resolution No. 973099.

On July 30, 1997, petitioner, through counsel, filed a petition for review with the Court of Appeals.

On August 14, 1998, the Court of Appeals rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, for lack of merit, the petition in the above entitled case is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Hence, this petition. Petitioner raises the sole issue of whether employees in the public service, regardless of their status of employment, are protected by the tenurial security right embodied in the Constitution.

Petitioner argues that, contrary to the findings of the CSC, the phrase "unless terminated sooner" refers not to the duration of his employment, but the duration of the PAPS support project itself. He claims that since the PAPS project was still ongoing, his services cannot be terminated without just cause and without the observance of due process. He asseverates that even co-terminous employees like himself enjoy security of tenure as embodied in the Constitution.

Petitioner's arguments are bereft of merit.1âwphi1.nêt

It is undisputed that petitioner's employment with CCPAP is contractual and co-terminous in nature. Such a co-terminous employment falls under the non-career service classification of positions in the Civil Service:

Sec. 9. Non-Career Service. - The Non-Career Service shall be characterized by (1) entrance on bases other that those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. (Underscoring ours)

The Non-Career Service shall include:

xxx

(4) Contractual personnel or those whose employment in the government is in accordance with a employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency.

xxx5

Additionally, Section 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides:

Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds. (Underscoring ours)

The co-terminous status may thus be classified as follows:

(1) Co-terminous with the project - when the appointment is co-existent with the duration of a particular project for which purpose employment was made or subject to the availability of funds for the same;

(2) Co-terminous with the appointing authority - when appointment is co-existent with the tenure of the appointing authority or at his pleasure;(Underscoring ours)

(3) Co-terminous with the incumbent - when the appointment is co-existent with the appointee, in that after the resignation, separation or termination of the services of the incumbent the position shall be deemed automatically abolished; and

(4) Co-terminous with a specific period - appointment is for a specific period and upon expiration and upon thereof, the position is deemed abolished.

A perusal of petitioner's employment contract will reveal that his employment with CCPAP is qualified by the phrase "unless terminated sooner." Thus, while such employment is co-terminous with the PAPS project, petitioner nevertheless serves at the pleasure of the appointing authority as this is clearly stipulated in his employment contract. We agree with the appellate court's interpretation of the phrase "unless terminated sooner" to mean "that his contractual job as Project Manager IV from March 11, 1996 to January 30, 2000 could end anytime before January 30, 2000 if terminated by the other contracting party-employer CCPAP." We quote with approval said court's ruling on the matter, thus:

xxx. The employment contract is written in plain and unambiguous language. With petitioner's stature, he could not have misunderstood it. Petitioner cannot now renege from the stipulation invoking security of tenure under the Constitution and the Civil Service Law. The fact is he belongs to the non-career service whose appointment is co-terminous, meaning his entrance and continuity in the service is based on trust and confidence of the appointing power. 6 (underscoring ours)

Granting arguendo that said disputed phrase refers not to the duration of petitioner's employment, but to the project itself, nevertheless, petitioner was validly terminated for cause. The records will show that petitioner garnered an unsatisfactory rating during the probationary period of his employment.7 After due notice, he was subsequently dismissed because of his inability to work with the other staff members of the project and to participate effectively in meetings regarding the project, resulting in loss of trust in him by his superiors. The much can be gleaned form the Memorandum as follows:

This is to confirm my verbal advise to you made last 4 September 1996 regarding your unsatisfactory performance during the probationary period of your contractual employment with the CCPAP BOT Center.

As advised, your inability to work with the other staff in the Center as well as participate in outside meetings are the main reasons for the rating which have resulted in the loss of my confidence in your ability to do your job as a Manager. (Underscoring supplied)

xxx8

Finally, we find petitioner's claim that he was deprived of due process unavailing. The Court of Appeals found that petitioner was informed of his unsatisfactory performance in his job as project manager about two weeks prior to his termination. Thereafter, upon receipt of the memorandum terminating his services, petitioner filed a complaint-appeal to the CSC. When the CSC affirmed his dismissal in its Resolution, dated April 2, 1997, petitioner filed a motion for reconsideration thereof. Thus, he cannot now claim that he was not given the opportunity to be heard.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit.

SO ORDERED.

AMBAS VS BUENASEDA

G.R. No. 95244 September 4, 1991

DRS. ELLEN AMBAS, JOANNE DE LEON, MARIE ESTELLA GUNABE, NERISSA BERNAL, RICARDO TOLENTINO and RAUL CHRIZALDO E. MORENA, petitioners, vs. DRS. BRIGIDA BUENASEDA and EFREN REYES; THE SECRETARY OF HEALTH; MERIT SYSTEMS PROTECTION BOARD; AND CIVIL SERVICE COMMISSION, respondents.  

R E S O L U T I O N

 

PADILLA, J.:p

Prior to their termination from employment, which is the subject of the petition at bar, petitioners were employed and retained as resident trainee physicians by the Department of Health, assigned to the National Center for Mental Health NCMH for purposes of brevity), under the Residency Program of the government. By authority of the Secretary of Health, petitioners were issued temporary appointments as resident trainees on the following dates:

1. Ambas, Ellen C. – October 14, 1988

2. Bernal, Nerissa C – April 28, 1989 (Renewal)

3. De Leon, Joanne – October 13, 1988

4. Gunabe, Marie Stella – October 20, 1988

5. Morena, Raul Chrizaldo – December 29, 1988

6. Tolentino, Ricardo U. – February 24, 1989

(Renewal)

xxx xxx xxx 1

Individual contracts of residency training were entered into by and between petitioners and the NCMH, wherein it was stipulated, among others, that NCMH would temporarily employ petitioners as resident trainees for one (1) year, renewable every year but not to exceed four (4) years; that the resident trainee would not engage in private practice of his profession even outside his regular office hours; and that NCMH reserves the right to terminate the training of a resident trainee for poor performance or failure to meet the standards of medical ethics, performance and behavior, as evaluated by the Teaching/Training Staff of NCMH. 2

In an undated confidential report, 3 the NCMH Medical Training Officer, Dr. Efren Reyes, recommended the termination of petitioners' services because of poor academic performance and low ranking. In

addition to the foregoing grounds cited, petitioner Dr. Raul Chrizaldo Morena was also found to have violated the Code of Conduct of Resident Physicians. The recommendation of the Training Officer for the termination of petitioners' services was based on the result of an evaluation conducted by the Residency Evaluation Committee on 16 June 1989 of all NCMH resident trainees.

In letters 4 dated 16 June 1989, petitioners were individually informed of the termination by the Residency Evaluation Commission committee of their services effective 1 July 1989, with the approval of the NCMH Chief. Twice, petitioners wrote to the Secretary of Health questioning their termination. When they received no reply, they wrote a letter-complaint to the Chairman of the Civil Service Commission. The Civil Service Commission (CSC) also failed to act on their letter-complaint, thus prompting them to assail their termination before the Merit Systems Protection Board (referred to hereinafter as the Board), docketed as MSPB Case No. 299. They alleged that the termination of their services by NCMH was arbitrary and violative of the existing civil service laws, regulations and the provisions of PD 1424 governing the residency training program in government hospitals.

In an indorsement dated 17 August 1989, the letter-complaint filed by petitioners with the Secretary of Health was referred by the latter to the CSC for appropriate action. In the same indorsement, the Secretary of Health confirmed the action of NCMH in terminating petitioners' services as resident trainees. 5

On 28 August 1989, the Board rendered a decision 6 declaring petitioners' termination as not valid and ordered their reinstatement to their former positions. It was the opinion of the Board that the power to remove petitioners belongs to the appointing authority, namely, the Secretary of Health, and that, therefore, the NCMH through its representative has no power to remove the petitioners.

After receipt of the decision of the Board, petitioners on 4 September 1989 filed a motion for execution of said decision. 7 Before said motion could be acted upon by the Board, an-exparte manifestation 8 was filed by petitioners in connection with the 3rd Indorsement of the Secretary of Health dated 17 August 1989.

On 14 September 1989 another ex-parte motion was filed by petitioners, with the Board seeking clarification of the decision on the issue of seniority, as well as salaries and benefits accrued prior to their termination. 9 On the same date, the NCMH through its Chief moved for reconsideration of the 28 August 1989 decision of the Board, alleging that the Board failed to appreciate the fact that the termination of petitioners' services was done in good faith and with the approval and/or confirmation of the Secretary of Health; and that as "temporary" appointees, petitioners could be terminated from employment at any time with or without cause.

Opposing the NCMH's motion for reconsideration, petitioners contended that the renewal of appointment of a resident trainee is discretionary upon the Secretary of Health; that the designation in their appointment as "temporary' does not remove the permanency of petitioners' appointment during the period of their training; and that the motion for reconsideration filed by NCMH was a "mere scrap of paper" because petitioners were not furnished with a copy of said motion. 10

Taking cognizance of the affirmation and/or confirmation by the Secretary of Health of petitioners' termination, the Board set aside its 28 August 1989 decision in a resolution dated 25 October 1989, declaring that —

The affirmation or concurrence of the appointing authority in their termination is tantamount to a curative act relative to the previous act effected by the Medical Training Officer and approved by the Medical Center Chief, NCMH. In effect, it was the appointing authority that terminated their services.

xxx xxx xxx

It bears stressing that under the laws (R.A. 1243 as amended by R.A. 2251; further amended by P.D. 1424) governing the Residency Training provide that they shall be appointed for a period of one year renewable every year in the discretion of the Secretary of Health or the Secretary of National Defense as the case may be ...' These laws did not mention the permanency of their appointments during the duration of the training. It merely states renewable every year subject to the sound discretion of the appointing authorities. Non-renewal is merely an expiration of the term of the appointment. Even the petitioners (now oppositors), through counsel admitted that the renewal of the appointment of a resident is discretionary. The renewal extended to some trainees cannot also automatically acquire permanency since it mentioned TEMPORARY on the face of the appointments.

The execution of the contract by the resident trainees necessarily follows the acceptance of the terms and conditions of the contract. In the same manner that the acceptance of a temporary appointments is also tantamount to the submission to the legal consequences, that is that he can be terminated at anytime with or without cause.

For clarification, it must be stated that petitioners are entitled to back salaries from the time they were illegally terminated up to the time their termination was affirmed and concurred in by the appointing authority – Secretary of Health.

xxx xxx xxx 11

Upon receipt of said resolution, an appeal was filed by petitioners with CSC assailing the finding of the Board that they are only entitled to back salaries from the time of their termination on 1 July 1989 to the time of the confirmation of their termination by the Secretary of Health on 17 August 1989.

On 5 September 1990, the CSC affirmed the 25 October 1989 resolution of the Board, holding that since the nature of their appointment was temporary, their services could be terminated with or without cause. The CSC declared that the contract signed by petitioners with NCMH bound them to the condition stated therein that their training may be terminated on the ground of poor performance, or in case of failure on their part to meet the standards of medical ethics and behavior; and that as authorities in their own field of specialization, the evaluation conducted by the Committee as to petitioners' performance during their training is presumed' regular. 12

Under the Hospital Residency Law governing the residency program in government service, the appointment of resident trainees is limited to a period of one (1) year, renewable every year not exceeding the duration of the training program in a particular field of medicine, at the discretion of the Secretary of Health or National Defense, as the case may be. 13 The supervision and control of the government training program are under either the Secretary of Health or Secretary of National Defense. 14

Inasmuch as the NCMH is under the Department of Health, it is the Secretary of Health who has the authority to appoint as well as remove the resident trainees. The power to remove is deemed lodged in the same body or person in which the power to appoint is vested. 15

Petitioners' appointment pursuant to the Hospital Residency Law was for a fixed period of one (1) year. Prior to the expiration of the term, petitioners could be removed only for just cause. The fact that petitioners' appointments were classified as "temporary" did not grant a blanket authority to the Secretary of Health to remove them at anytime without cauge for the term fixed by law protects the right of the resident trainees from being removed from office without cause. A "term" of office fixed by law allows the appointee to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of said period. 16 It is the definite period of time prescribed by law by which an officer may hold office. 17

The separate appointments extended to petitioners were for a definite period of one (1) year. Applying the provisions of the Hospital Residency Law to the expiration of the term of one (1) year, petitioners'

appointments could be renewed only at the discretion of the Secretary of Health. The non-renewal of their appointments with or without cause at the end of their term, is a valid mode of termination.

Records show that the termination of petitioners' services by NCMH on 1 July 1989 which was thereafter affirmed by the Secretary of Health on 17 August 1989, was made before the expiration of their respective terms. Inasmuch as their term had not expired at the time of their termination or dismissal, it is necessary that such removal be for cause.

Based on the result of evaluation conducted by the Residency Evaluation Committee on 16 June 1989, petitioners obtained a poor rating in academic performance and a low ranking in said evaluation. 18 The Board recommended their termination for the following reasons:

1. DR. ELLEN AMBAS — First Year Resident Physician Poor academic performance in the past two quarter evaluation. Board's decision was unanimous.

2. DR. JOANNE DE LEON — First year Resident Physician Low ranking in the overall performance evaluation. Case observational report made by her continuing supervisor points to poor academic performance as expected of her year level (Dr. Galvez), and her hysterical personality trait does not augur well as a Psychiatrist in training. (Dr. Laraya).

3. DR. MARIE STELLA GUNABE — First Year Resident Phys. Low academic performance. Dr. Galvez described her as a scatter brain in her work.

4. DR. RICARDO TOLENTINO — Second Year Resident Phys. Poor academic performance. This rating have been (sic) noted as early as his first year of training but was given a 'chance' to change but to no avail.

5. DR. NERISSA BERNAL — Second Year Resident Physician Poor academic performance. She ranked second to the last among her peers. Marked defect in attitudinal and interpersonal behavior was consistently noted in her two major areas of rotation.

6. DR. RAUL MORENA — Second Year Resident Physician Poor academic performance. Violation of the Code of Conduct of Resident Physicians. He received several warnings and advises from clinical supervisors and chief of services about this problem. 19

The training of petitioners under the Psychiatric Residency Program with NCMH involved a special field of medicine. Because of the nature of their training in psychiatry, the NCMH had the right to set a standard to be met by the resident trainees, to produce graduates who are qualified and skilled in the said field. To attain this purpose, the NCMH recommended to the Secretary of Health the termination of resident trainees who failed to come up to the standard set for such program.

However, the NCMH had no power to terminate the trainees. Only the Secretary of Health, as the appointing authority, had the power to remove them from the service. Thus, the removal of petitioners by NCMH effective 1 July 1989 was not valid. But, the confirmation on 17 August 1989 made by the Secretary of Health of petitioners' termination had the force and effect of a valid removal, effective on the date such confirmation was made.

The Secretary of Health did not commit grave abuse of discretion in terminating petitioners from the service because the same was done with just cause, i.e., the petitioners' poor academic performance and low ranking in the evaluation conducted by the Residency Evaluation Committee of NCMH. Under the

circumstances, the valid removal of petitioners took effect only 17 August 1989, and, therefore, they are entitled to backwages from 1 July 1989 to 17 August 1989.

There is no merit to petitioners' claim that they were deprived of due process because they were not given notice of the motion for reconsideration filed by respondent Dr. Buenaseda, on behalf of NCMH. Although petitioners were not duly furnished any notice of said motion, they were nonetheless able to file their arguments or opposition to the allegations raised therein, before the said motion for reconsideration was resolved by the Board, reversing its original decision.

ACCORDINGLY, the petition is DISMISSED.

SO ORDERED.

PROVINCIAL VS TEMPORARY APPOINTMENT

REGIS VS OSMENA

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner, vs. SERGIO OSMEÑA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND CITY AUDITOR, respondents.

DAVIDE, JR., J.:p

This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case No. R-8778, dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to reinstate him to his former position as driver, Motorized Section of the Cebu City Police Department (CPD), with back salaries from the date of his ouster until reinstatement, and to pay him moral and exemplary damages and attorney's fees. 2

The material operative facts in this case, as admitted by the parties in the stipulation of facts they submitted in the court below and as established by the other evidence introduced by them pursuant to the reservations they made in the stipulation of facts are as follows:

I. Per stipulation of facts: 3

1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, Ramon Duterte, as driver, Motorized Division of the Cebu Police Department, with a yearly compensation of P1,440.00, as shown by a true copy of his appointment hereto attached and marked Annex "A";

2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police Department, at an increased yearly compensation at P1,560.00, a true copy of which is hereto attached and marked Annex "A-1";

3 On December 21, 1961, petitioner was issued another appointment by then Cebu City Mayor Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P1,920.00 a true copy of which is hereto attached and marked as Annex "A-2";

4. On November 7, 1963, petitioner was extended an appointment as "driver (Radio Patrol) Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P2,040.00, true copy of which is marked as Annex "A-3";

5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department without prior investigation or hearing, the termination having been made in a letter of dismissal quoted as follows:

REPUBLIC OF THE PHILIPPINES

CITY OF CEBU

Office of the Mayor

April 14, 1964

Mr. Deogracias A. Regis, Jr.

Driver, Cebu Police Department

Cebu City

Sir:

There being no more need for your service as Driver in the Cebu Police Department, your provisional appointment thereto is hereby terminated effective April 16, 1964. Please turn over any government property that may have been issued to you to the proper property custodian and have yourself cleared of any accountability during the period of your service.

Respectfully,

By order of the Mayor:

(SGD.) Vicente V. Pacifico Secretary to the Mayor

6. Petitioner is a civil service eligible, having passed the patrolman and/or detective (qualified) civil service examination on July 20, 1963 with a rating of 76.85% as shown in the attached copy of "Report of Ratings" marked Annex "B";

7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas as shown by the attached certification marked Annex "C";

8. The position of the petitioner, after his removal, was filled up by the respondent City Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible as shown in his appointment hereto attached and marked Annex "D";

9. On August 20, 1964, after his removal, the petitioner addressed similarly worded letters to the President of the Philippines and the Civil Service Commissioner, hereto attached as Annexes "E" and "E-1", protesting and appealing his unlawful removal and demanding his reinstatement. Under date of September 4, 1964, the Executive Secretary to the President indorsed the above-mentioned letter to the Commissioner of Civil Service, as shown in the first indorsement hereto attached as Annex "E-2". Since the filing of the instant action, the petitioner has not been afforded the relief of reinstatement by either the Office of the President of the Philippines or by the Civil Service Commissioner.

Parties, however, will submit evidence to establish facts not herein stipulated.

Cebu City, August 20, 1965.

(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN

(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN

Attorney for the Assistant City Fiscal

Petitioner Counsel for the

2nd Floor, Aboitiz Respondents

Building Cebu City

Magallanes corner

Jakosalem

Cebu City

II. Per additional evidence formally adduced during the hearing:

10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964, a photostatic of which was filed, for record purposes, with the clerk in charge of the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating is 88%, the highest among the drivers of the CPD he is the only civil service eligible among the drivers in the CPD; after his ouster, the City of Cebu created positions of drivers; and he attributed his ouster to politics, alleging that he was being suspected as a supporter of the faction of then Congressman Durano, the political rival of respondent Mayor Osmeña; 4 and

11. The records of the Regional Office of the Civil Service Commission in Cebu City do not show that petitioner possesses any civil service eligibility at the time he was appointed as driver. 5

This Court further observes that the actions of the Civil Service Commission on the appointments of petitioner admitted in the Stipulation of Facts and attached thereto as Annexes "A", "A-1", "A-2" and "A-3" were as follows:

1. Appointment dated 8 January 1958 — Noted as temporary pending receipt of the required medical certificate, subject to availability of funds and provided that there is no pending administrative or criminal case against appointee and that the separation of the former incumbent is in order;

2. Appointment dated 8 January 1960 — Approved under Section 24(c) or R.A. No. 2260 as an exception to Section 256 of the Revised Administrative Code, and subject to availability of funds;

3. Appointment dated 21 December 1961 — Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds and as exceptional case under Sec. 256 of the

Revised Administrative Code, provided there is no pending administrative or criminal case against the appointee and provided that his efficiency rating for the semester ending 6-30-61 is not below 85%; and

4. Appointment dated 7 November 1963—Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds and subject to Section 20 of R.A. No. 2260, provided there is no pending administrative or criminal case against the appointee.

The last three appointments were for salary adjustments.

In its Decision of 28 December 1965, the court below dismissed the petition on the ground that petitioner's questioned appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing power. Expounding on this, it says:

xxx xxx xxx

As for the first issue the answer is that his status at the time of his ouster on April 16, 1964 was that of temporary driver of the CPD. His appointments on January 8, 1958, January 8, 1960, December 21, 1961 and on November 7, 1963 were all temporary in nature. It is true that on March 5, 1964 the Civil Service Commission certified to his having passed the patrolman/detective civil service examination with a rating of 75.85%, but said examination is not intended for or appropriate to, the position of driver; hence, it did not convert his temporary status of driver to a permanent one. (Sec. 8, Rule IV, Civil Service Rules.) Then again, the mere certification of the Civil Service Commission of his civil service eligibility for patrolman/detective did not amount to his appointment. The appointing power, the City Mayor, has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified for any competitive position in the Civil Service. The Civil Service Commission does not ensure any appointment; it only certifies an eligible to be possessed of the qualification, as required for a position classified under its rules. (Jimenez vs. General Francisco, etc., et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.)

The appointment of the petitioner being temporary or provisional in nature, the duration of temporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After the expiration of said period, petitioner could have been removed at will by the appointment power; his continuance thereafter as a temporary employee was only an extension of grace. (Jimenez vs. General Francisco, etc., et al., supra.)

Temporary appointment is similar to one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power. And one who bears such an appointment cannot complain if it is terminated at a moment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G. Dec. 8, 1958, p. 8063.) 6

Hence, this appeal.

In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition. 7

In support thereof he argues that his removal on the ground that there was "no more need for your service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-civil service eligible, was appointed to the vacated position and in the succeeding budget of the City of Cebu more positions of driver were created; at the time of his ouster he was already a civil service eligible, having passed the patrolman-detective (qualifying) civil service examination given in July of 1963, and respondents knew of this fact. Moreover, said removal was not for cause, and it was done without due

process in violation of Section 32 of R.A. No. 2260 which provides that 44 no officer or employee in the civil service shall be removed or suspended except for cause provided by law and after due process."

Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary appointment as erroneously classified by the court a quo. Republic Act No. 2260 makes a distinction between provisional and temporary appointments. The former is governed by Section 24(c) while the latter is covered by Section 24(d) thereof. According to him, his appointment was provisional because at the time it was extended he was not yet a civil service eligible. He was still awaiting for the results of the examination for patrolman-detective (qualifying) given by the Civil Service Commission in July of 1963; however, he received his report of rating on 8 March 1963 indicating that he passed it; consequently, instead of dismissing him, the City Mayor should have extended to him a permanent appointment inasmuch as he had already become a civil service eligible. In short, he claims that his patrolman-detective eligibility is appropriate to his position considering the nature of his office prior to his removal which authorized him to wear the uniform and badge of a regular member of the Cebu Police Department, carry an official firearm, wear an ID as a regular member of the city police, and to make arrests.

Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his separation from the service could only be done under R.A. No. 557 under which the City Mayor can only prefer charges but cannot remove.

Respondents filed their Brief after the expiration of the reglementary period. Upon motion of petitioner dated 29 March 1967 8 this Court ordered their brief stricken off the record. 9

We agree with the petitioner that the trial court erred in holding that his appointment is temporary in nature. Obviously, the trial court failed to appreciate the clear distinction between a temporary appointment and a provisional appointment. It had either confused one for the other or considered one as synonymous with the other as shown in the opening sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it categorized the appointment of petitioner as "temporary or provisional in nature."

As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section. For convenience We quote both paragraphs:

xxx xxx xxx

(c) Provisional appointments — A provisional appointment may be issued upon prior authorization of the Commissioner in accordance with the provisions of the Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

(d) Temporary appointment. — A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that a preference in filling such position be given to persons on appropriate eligible lists.

In Festejo vs. Barreras, et al., L-25074, 27 December 1969, 10 We made a distinction between a provisional appointment and temporary appointment thus:

xxx xxx xxx

There is no basis nor logic in appellants' contention that there is no difference between a temporary appointment under Section 24(d) of the Civil Service Act which reads thus:

Temporary Appointment. — A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that preference in filing such position be given to persons on appropriate eligible lists.

and a provisional appointment under Section 24(c) which says:

Provincial appointment. — A provisional appointment may be issued upon the prior authorization of the Commissioner in accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

According to appellants, "while they may be different in the degree of permanence, in that temporary appointments are generally for and within specified periods of time, their nature as being subject to termination by the appointing power remains the same." Such contention petition is untenable.

Even from a cursory reading of these two provisions, one can readily see that each of them contemplates an entirely different situation from the other. Indeed, as pointed out by His Honor, the trial judge, it is contrary to the ordinary rules of legal hermeneutics to assume that the lawmakers intended these two separate provisions in a seemingly single enumeration of categories of appointments to have the same import or significance. Whereas a temporary appointment is designed to fill "a position needed only for a limited period not exceeding six months, a provisional appointment, on the other hand, is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment." In other words, the reason for extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be finished in not more than six months but because the interest of the service requires that certain work be done or functions be performed by a regular employee, only that there is no one with appropriate eligibility, who can be appointed to do it, hence any other eligible may be appointed to perform such work or functions in the meanwhile that a suitable eligible does not qualify for the position. This is clearly implied by the mandate of the provision that a provisional appointment may be extended only to "a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service," meaning one who must anyway be a civil service eligible. On the other hand, again, in the case of a temporary appointment, all that the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists." And merely giving preference, of course, presupposes that even a non-eligible may be appointed. As a matter of fact, under this provision, even if the appointee has the required civil service eligibility, his appointment is still temporary, simply because such is the nature of the work to be done. The decisions cited by appellants are not in point. They all refer to temporary appointments as such. None of them involves a provisional appointment like the one herein in question.

In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972, 11 We further elaborated on the distinction:

. . . A provisional appointment is one which may be issued, upon the prior authorization of the Commissioner of Civil Service in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment (Sec. 24(c), supra). On the other hand, a temporary appointment given to a non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure of the appointing power." (Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate, 104 Phil. 131, 135).

As early as Piñero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 We held:

. . . Even in the case of those holding provisional or probationary appointments . . . the invalidity thereof can not be declared unless it is first shown that there were appropriate eligibles at the time they were appointed . . .

In Ferrer vs. Hechanova, L-24416, 25 January 1967, 13 We held:

. . . A provisional appointment is good only until replacement by a civil service eligible and in no case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs. 13 and 14, Revised Civil Service Rules; Piñero vs. Hechanova, supra).

In Ramos vs. Subido, L-26090, September 6, 1967, 14 We ruled:

The position in question is under the classified service; Ramos accepted Ms latest appointment thereto, dated July 1, 1963, without having the requisite appropriate civil service eligibility for said position. Accordingly, his appointment can only be deemed provisional and good only until replacement by one holding such appropriate eligibility, in no case to extend more than thirty days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418, January 25, 1967).

In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July1971, 15 We affirmed the decision of the trial court holding that provisional appointments under Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the appointing power of a list of eligibles from the Civil Service Commission.

In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972, 16 We reiterated our rulings in Piñero vs. Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido.

Accordingly, since there was no certificate of civil service eligibility received by respondent City Mayor, the provisional appointment of petitioner remained valid and subsisting. Prior to such receipt petitioner may only be removed for cause as provided by law under Section 32 of R.A. No. 2260. That there was "no more need" for his service was not a valid and lawful cause and even if it were so, it could not be availed of in this case since, as admitted by the parties, immediately after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included in the succeeding budget of the City of Cebu. These facts negated the pretended basis for the dismissal. The real hidden cause was not that service of the nature and character rendered by petitioner was no longer needed, but that petitioner had become unacceptable to the appointing authority. Petitioner testified that his removal was politically motivated, he was suspected of supporting the faction of Mr. Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith and credit to this testimony considering that this point was not even alleged in the petition.

We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert his temporary [should be, correctly, provisional] appointment of driver to a permanent one (Sec. 8, Rule IV, Civil Service Rules)."

Section 8, Rule IV of the Civil Service Rules provides:

xxx xxx xxx

Except as otherwise provided by law, eligibility in a certain examination shall serve as qualification for appointment only to the position or positions for which examination was held and no horizontal or vertical conversion of eligibility or examination rating shall be allowed.

xxx xxx xxx

In Police Commission vs. Lood, et al., L-34637, 24 February 1984, 17 We ruled:

Under the civil service law then in force, the fact that private respondent subsequently became a civil service eligible did not ipso facto render permanent the nature of his temporary appointment as to make the question moot and academic.

Although this case refers to a temporary appointment, the rule laid down equally applies to a provisional appointment.

This matter, however, had been subsequently categorically resolved in favor of holders of provisional appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18 thereof provides:

. . . all provisional appointments made or appointments approved by the Civil Service Commission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be permanent under the provisions of Section twenty-four (b) thereof as amended by this Act , subject to the provisions of Section 16(h) of said Act as herein amended. (emphasis supplied).

Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4 August 1969.

We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.

He should also be granted back salaries.

However, the award for back salaries should not be from the date of his dismissal until reinstatement. In similar cases, We limited the award for a period of five (5) years. 18

In Ginson vs. Municipality of Murcia, et al., We ruled:

Considering however, the lapse of time spanning almost twenty years—since this controversy rose, and considering the probability that the petitioner might have, in the interim, acquired a new employment, we are constrained to grant her the payment of back salaries equivalent to five (5) years without deduction or qualification. (Citing Laganapan vs. Asedillo, supra).

We likewise order her reinstatement, subject to the condition that she has not obtained any other employment in Murcia municipal dentist or any position for which she is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness. . . .

As to who of the respondents should pay the back salaries, We rule that only respondent City of Cebu should be liable therefor. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his stead of another whose salaries it thereafter paid. All respondents were represented by the Assistant City Fiscal of Cebu City and interposed the same defenses. 19 Moreover, after respondent Mayor Osmeña vacated his office his successor, Carlos J. Cuizon, without the objection on the part of the City of Cebu, filed a manifestation in the court below to the effect that he adopted the position of his predecessor, Mayor Osmeña, in respect to the course of action taken against petitioner 20

In short, respondent City of Cebu confirmed or ratified the action of the Mayor.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject to the condition that he has not obtained any other employment, to his position under his appointment of 7 November 1963, or to any position of equivalent rank, or for which he is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5) years without qualification and deduction and with interest at the legal rate from the date of his illegal dismissal until the same shall have been fully paid, and (c) pay the costs.

SO ORDERED.

REGULAR VS AD INTERIM APPOINTMENT

PAMANTASAN NG LUNGSOD NG MAYNILA VS IAC

G.R. No. L-65439 November 13, 1985

PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner vs. HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR., HON. ALBINA MANALODANS as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, respondents.

GUTIERREZ, JR., J.:

The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the position in a permanent capacity as to guarantee as security of tenure.

Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its temporary and contractual nature such that the respondent may be dismissed at any time even without cause.

Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco.

At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a 'Notification of Confirmation of Temporary Appointment' dated June 28, 1973. His appointment was 'effective May 21, 1973 until June 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicating that his appointment was renewed 'effective July 1, 1974 until August 31, 1974.'

A month later, on August 30, 1974, he received from the University Secretary another 'notification of renewal of temporary appointment' informing him that the Board of Regents, on recommendation of the President of the University approved the renewal of his appointment 'effective September 1, 1974 until June 30, 1975' with an increased salary of P17,160 per annum.

On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment as vice-president for administration at a salary of P17,600 per annum had been renewed effective September 1, 1974 until June 30, 1975.

On June 26, 1975, he received another 'Notification of Renewal of Temporary Appointment' as Vice-President for Administration with at salary of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.'

On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary appointment to a permanent one, considering his two and half (2½) years service.

On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various reasons for her not acting favorably on his request.

On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that the president of the university had approved his appointment as Professor III with a salary of P15,600 per annum 'effective August 1, 1975'. He was further designated as Director of the Institute of Continuing Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975.

On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban's appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents.

On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the protection of his tenure in the Pamantasan .

On October 9,1975, the Civil Service Commission ruled that:

The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the Case, his services may be terminated at any time with or without request that he be extended permanent appointment ,or that his temporary appointment be converted into permanent one, it may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing official.

Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified for the position of Vice-President for Administration and certified him "for appointment therein under permanent status." The Commission stated:

In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remian under temporary status for the length of time prior to the withdrawal of his appointment as Vice President for Administration in that University, and as it further appears that he is fully qualified for the position in question in view of his extensive experience in the fields of public administration and management, this Commission hereby certifies him for appointment therein under permanent status.

The Pamantasan, in turn, asked for the reconsideration of that ruling.

The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement of Dr. Esteban because 'it was never intended to be so

On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976. He also asked for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had withheld. His request was denied by the commission in its undated resolution No. 158, Series of 1976.

On September 15, 1976 Esteban reiterated his request for payment of his salaries.

On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his appointment as Vice-President for Administration.

On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer of the Pamantasan.

On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do that under Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position.

Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission to order them to submit "all papers and documents pertinent to that case."

On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the Civil Service Commission to hear and decide cases brought before it on appeal by officers and employees who feel aggrieved by the determination of officials on personnel matters.

The Board required the Pamantasan to submit its complete records on the appointment and termination of Dr. Esteban as vice-president for administration.

While the records officer of the Pamantasan submitted copies of the notices sent to Esteban regarding his appointment as vice-president for administration, he did not submit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic personnel of said university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He produced a copy of the memorandum circular dated August 7, 1915 of the President of the Pamantasan terminating Dr. Esteban's service as of July 31, 1975.

In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president for administration of the Pamantasan in a permanent capacity.

On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was appointed ... in a permanent capacity.

In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents meeting on June 20, 1973 when Esteban's appointment was approved the Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his appointment as Vice-President for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose.

The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of Pamantasan with permanent status and that the temporary appointment issued to him did not alter his permanent status as he had 'already acquired a vested right as well as the right to security of tenure', that he cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without cause, as provided by law and after due process." The Commission held that the termination of his services was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he failed to receive from the time he was separated therefrom.

The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a copy of Resolution No. 485.

The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on Dr. Esteban's appointment in question, may be determined." Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motion for reconsideration and ruled that "Upon confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same became permanent."

Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of First Instance of Manila, Branch XIII.

On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban's appointment was invalid, though he may be considered as a de facto vice-president of the University up to October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be terminated at any time.

The private respondent appealed to the Intermediate Appellate Court.

On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision reversing the trial court's decision. The dispositive portion of the appellate decision reads:

Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan's petition for certiorari is denied. Resolution No 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vice- president for administration of the university under the Board of Regents' Resolution No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries, allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits only up to the time he should handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review.

We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of the respondents.

From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several "ad-interim" appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word "ad interim" which creates such belief. The term is defined by Black to mean "in the meantime" or for the time being, Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):

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

Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment.

In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interim appointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee's term is converted into the regular term inherent in the position.

Petitioner centers its arguments and tries to fix the attention of the court to the fact that all notices of appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed commencement and termination dates, "unless sooner terminated." As expressed by public respondent, "... This stubborn insistence is anchored on the notifications of temporary appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores ... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so argued. "In case of conflict between a notification issued by the Secretary of the University which is supposed to reflect the true content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter is controlling for obvious reasons. The Secretary of the University has no authority to alter or add something which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent Intermediate Appellate Court held:

The permanent nature of appellant's appointment was not altered or diminished by the misleading 'notifications' which were sent to him by the secretary of the university president, referring to his appointment as 'temporary', nor by his uninformed acceptance thereof without knowledge of the true contents of Resolution No. 485 which the university president appears to have studiously suppressed.

There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that respondent Esteban's appointment was temporary. The Board's action was to confirm or reject an existing ad interim appointment. If respondent's appointment was intended to be temporary, it should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary appointment divests the temporary appointee of the constitutional security of tenure against removal without cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1).

Further supporting private respondent's stand is the list of permanent personnel which was submitted to the Commission by the university president herself on March 3, 1975 for recognition of their permanent status by the Commission. The appellant's name was the first in that list (Exhibit 8-B). The permanent status of private respondent's appointment as Vice-President for Administration at Pamantasan was recognized by the Civil Service Commission in its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil Service Commission as well as the Court of First Instance.

From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent appointee. With strained relations and differences in professional opinion between the private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure.

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. lt is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had written:

... With the sword of Damocles hanging over the heads of faculty members, the university has spawned a meek, spineless, even subservient corps of professors and instructors. (Newsman's Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private respondent's services by petitioner. With his appointment now settled as permanent., the Civil Service law and the Constitution guarantee private respondent's security of tenure as 'No officer or employe in the Civil Service shall be suspended or dismissed except for cause as provided by law" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed to substantiate its allegations of incompetence against respondent Esteban whose record of government service appears quite impressive. Esteban was not dimissed for cause after proper proceedings. His appointment was terminated on the ground that it was temporary.

The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has not reached the age of compulsory retirement from the government service.

It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting for work and rendering services in whatever capacity, whether teaching, research or administration. As of backwages, the amount is generally based on the equivalent of three years' earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages to be "subject to deduction whre there are mitigating circumstances in favor of the employer, but subject to increase whree there are aggravating circumstances. (Tupas Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November 5,\1985; Progressive Development Corporation v. Progressive Employees' Union, 80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpased from the date respondent Esteban as to the true nature of his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable under the circumstances, assuming he has not reached retirement age in the meantime.

WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed from is affirmed subject to the modification in the payment of back salaries as stated above.

SO ORDERED.

Separate Opinions

DE LA FUENTE, J., concurring:

I vote for the affirmance in toto of the decision of IAC. I believe that under the circumstances there should be no reduction of the back salaries, etc.

SARMIENTO VS MISON

G.R. No. 79974 December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments.

Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide.

Section 16, Article VII of the 1987 Constitution says:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

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

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with

more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments.

(4) The President shall havethe power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

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(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices.

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. Thus-

Mr. Rama: ... May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.

xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on

line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera.

MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26.

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence.

MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors.

xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

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MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . .

THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved.

xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

xxx xxx xxx

MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?

FR. BERNAS: It is a little vague.

MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions.

FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments,

MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.

FR. BERNAS: Will Commissioner Davide restate his proposed amendment?

MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"?

MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

FR. BERNAS: That will clarify things.

THE PRESIDENT: Does the Committee accept?

MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman.

MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide.

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII reading-

He (the President) shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments.

Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentence-

Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences.

As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof.

Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments.

As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-

ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the word "alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof —

...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus-

3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; ...

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments,

In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where

the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head.

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto.

WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.

SO ORDERED.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public service demand that any doubts over the validity of such appointments be resolved expeditiously in the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the basis of the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the direct appointment of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract and without the same being properly raised before it in a justiciable case and after thorough discussion of the various points of view that would enable it to render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the President "nominates" and with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence, however, significantly uses only the term "appoint" all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. Deliberately eliminated was any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term "appoint" used in said sentence was not meant to include the three distinct acts in the appointing process, namely, nomination, appointment, and commission. For if that were the intent, the same terminologies in the first sentence could have been easily employed.

There should be no question either that the participation of the Commission on Appointments in the appointment process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which required that all presidential appointments be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional confirmation, thus:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during recess of the Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first sentence are required to undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain to commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to

require all Presidential appointments clearance from the Commission on Appointments, they could have simply reenacted the Constitution's 1935 counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President may make: (1) appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a question addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide." 10

It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the appointing power.

It is the essence of a republican form of government, like ours, that "[e]ach department of the government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment upon both judicial and executive domains, since the determination of guilt and punishment of the guilty address judicial and executive functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a very real sense, the power of appointment constitutes a check against legislative authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the responsibility of administering that very legislation and whose members have been determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is the concern of the President, and in going about this business, he acts by himself or through his men and women, and no other.

The President, on the other hand, cannot remove his own appointees "except for cause provided by law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a subsequent case, 24 where it was held that the President may remove only "purely executive officers, 25 that is, officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove incumbents of offices confidential in nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. 27

Accordingly, the failure of the Commission to either consent or not consent to the appointments preferred before it within the prescribed period results in a de facto confirmation thereof

Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly articulated:

xxx xxx xxx

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ... When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and five." (Id. at 56.) Yet because no complex society can have its centers of power not "offset against each other as checks," and resist tyranny, the Model of Separated and Divided Powers offers continuing testimony to the undying dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the Convention did not provide for a commission on appointments on the theory that the Prime Minister, the head of the Government and the sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against abuse with respect to those appointments. It does not accord Congress any more than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never have any of its provisions interpreted in a manner that results in absurd or irrational consequences.

The Commission on Appointments is an important constitutional body which helps give fuller expression to the principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance that only those who can pass the scrutiny of both the President and Congress will help run the country as officers holding high appointive positions. The third sentence of the first paragraph — " ... The Congress may, by law, vest the appointment of other

officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be appointed by the President alone. If as expounded in the majority opinion, only the limited number of officers in the first sentence of Section 16 require confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences become meaningless or superfluous. Superfluity is not to be read into such an important part of the Constitution.

I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for confirmation. This can only mean that all other appointments need confirmation. Where there is no need for confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable to the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with the system of government organized under the Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments are vested in the President in the Constitution. No confirmation is required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the third sentence for those other officers lower in rank whose appointment is vested by law in the President alone.

Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central Bank and the members of the Monetary Board because they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the absurd consequences we should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional Commission, there is none cited on the second

sentence either in the Solicitor-General's comment or in the majority opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and third sentences of Section 16 or by reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of officers specified therein may be appointed by the President without the concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the Idea that all other appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need confirmation as long as their appointment is vested by law in the President alone. The third sentence would appear to be superfluous, too, again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower officers will need the confirmation of the Commission on Appointments while, by contrast, the higher officers mentioned in the second sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because, according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the restoration of the Commission on Appointments to check the appointing power which had been much abused by President Marcos. We are now told that even as this body was revived to limit appointments, the scope of its original authority has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence and simply mentions the other officers appointed by the President who are also subject to confirmation. The second sentence is the later expression of the will of the framers and so must be interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau directors from confirmation. I repeat that there were no debates on this matter as far as I know, which simply means that my humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers of the Presidency.

The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional Convention:

Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1 propose to put a period (.) after 'captain' and on line

29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.

Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.

However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented from adding to the list of officers subject to confirmation by the Commission on Appointments and cite the debates on this matter in support of this supposition. It is true enough that there was such a consensus, but it is equally true that this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does not include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16, comes under the second sentence thereof as I would interpret it and so is also subject to confirmation.

I vote to grant the petition.

BAUTISTA VS SALONGA

G.R. No. 86439 April 13, 1989

MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents.

PADILLA, J.:

The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which appointments by the President, under the 1987 Constitution, are to be made with and without the

review of the Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

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

this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution.

The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the subjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what really matters are the principles that will guide this Administration and others in the years to come.

Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. 2

The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. It provides:

(c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor.

The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements — absent in the Mison case — makes necessary a closer scrutiny. The facts are therefore essential.

On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of designation reads:

27 August 1987

M a d a m:

You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.

Very truly yours,

CORAZON C. AQUINO

HON. MARY CONCEPCION BAUTISTA 3

Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows:

17 December 1988

The Honorable The Chairman Commission on Human Rights Pasig, Metro Manila

M a d a m:

Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights:

MARY CONCEPCION BAUTISTA — Chairman ABELARDO L. APORTADERA, JR — Member SAMUEL SORIANO — Member HESIQUIO R. MALLILLIN — MemberNARCISO C. MONTEIRO — Member

By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office.

Very truly yours,

CORAZON C. AQUINO 5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office.

On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows:

OATH OF OFFICE

I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion.

SO HELP ME GOD.

MARY CONCEPCION BAUTISTA

SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila.

MARCELO B. FERNAN

Chief Justice Supreme Court of the Philippines 6

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously stated, she had originally held merely in an acting capacity beginning 27 August 1987.

On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the Commission on Human Rights. 8

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the reasons therein given, why she considered the Commission on Appointments as having no

jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads:

January 13, 1 989

SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila

S i r:

We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments.

We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments.

The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those.

Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights.

Furthermore, the Constitution specifically provides that this Commission is an independent office which:

a. must investigate all forms of human rights violations involving civil and political rights;

b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights;

c. may call on all agencies of government for the implementation of its mandate.

The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted.

The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights.

In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment.

Very truly yours,

MARY CONCEPCION BAUTISTA, Chairman 9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights" 10

and informing Secretary Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989

HON. CATALINO MACARAIG, JR.Executive Secretary Malacanang, Manila

S i r:

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights.

As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments.

This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights.

Very truly yours,

V. VICTORINO Secretary 11

On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows:

1 February 1989

ATTY. MARY CONCEPCION BAUTISTA Commission on Human Rights

Integrated Bar of the Philippines Bldg. Pasig, Metro Manila

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed.

Thank you for your attention.

Very truly yours,

V. VICTORINOSecretary 12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus —

Aquino names replacement for MaryCon

President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments.

The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case which had been elevated to the Supreme Court.

The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time.

For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office.

In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interim appointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional authority to confirm and to review her appointment." 14

The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of their deliberations." 15

Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission.

Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar personnel actions. 17

Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison.

As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.

The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission

on Human Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President . To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23

xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him.

xxx xxx xxx

Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. ....

xxx xxx xxx

But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989

It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties.

Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution.

The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments

over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained.

Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction.

EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad interim appointments.

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic.

We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows:

WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order:

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows:

The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven.

(Sgd.) CORAZON C. AQUINOPresident of the Philippines

By the President:

(Sgd.) JOKER P. ARROYO Executive Secretary 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec. 2(c) of which provides:

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointments to any vacancy shall be only for the unexpired term of the predecessor.

It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights — which is seven (7) years without reappointment — the later executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the President."

Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:

The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term. 27

When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution).

As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office."

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional.

The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus —

MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times.

xxx xxx xxx

MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid — to make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28

xxx xxx xxx

MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a need to constitutionalize it. 29

xxx xxx xxx

MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members of the military or the armed forces. 30

xxx xxx xxx

MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by members of the military, by the Armed Forces of the Philippines. 31

xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration. 32

xxx xxx xxx

MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a body that will effectively enforce the rules designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending before said court. 37 This is due process in action. This is the way of a government of laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent.

SO ORDERED.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too much to expect a constitutional ruling which results in absurd or irrational consequences to ever become settled.

The President and Congress, the appointees concerned, and the general public may in time accept the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb. Serious students of the Constitution will continue to be disturbed until the meaning of the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in the first sentence clearly require confirmation by the Commission on Appointments. The officers mentioned in the third sentence just as clearly do not require confirmation. The problem area lies with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the three sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The first sentence of Section 16 state they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in the President alone. They need no confirmation.

The second group of presidential appointees are "all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where confirmation is not needed?

No matter how often and how long I read the second sentence of Section 16, I simply cannot associate the officers mentioned therein as forming part of those referred to in the third sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be no need for the second and third sentences of Section 16. They become superfluous. Any one not falling under an express listing would need no confirmation. I think the Court is wrong in treating two carefully crafted and significant provisions of the fundamental law as superfluities. Except for the most compelling reasons, which do not exist here, no constitutional provision should be considered a useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view results in the absurd consequence where one of several hundred colonels and naval captains must be confirmed but such important officers as the Governor of the Central Bank with broad powers over the nation's economy and future stability or the Chairman of the Commission on Human Rights whose office calls for no less than a constitutional mandate do not have to be scrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him there and who exercises control over his acts can be appointed by the President alone? Why should we interpret Section 16 in such a strange and irrational manner when no strained construction is needed to give it a logical and more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the word "also" in a sentence, we associate it with preceding sentences, never with the different sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank' who are appointed pursuant to law by the President "alone." This can only mean that the higher ranking officers in the second sentence must also be appointed with the concurrence of the Commission on Appointments. When the Constitution requires Congress to specify who may be appointed by the President alone, we should not add other and higher ranking officers as also appointed by her alone. The strained interpretation by the Court's majority makes the word "alone" meaningless if the officers to whom "alone" is not appended are also included in the third group.

(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment in the President alone before such an appointment is freed from the scrutiny of the Commission on Appointments. By express constitutional mandate, it is Congress which determines who do not need confirmation. Under the majority ruling of the Court, if Congress creates an important office and requires the consent of the Commission before a presidential appointment to that office is perfected, such a requirement would be unconstitutional. I believe that the Constitution was never intended to so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power of the people's elected representatives through an implied and, I must again add, a strained reading of the plain text of

Section 16. Any restriction of legislative power must be categorical, express, and specific-never implied or forced.

(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial and Bar Council screens nominees before their names are forwarded to the President. The Vice-President as a cabinet member needs no confirmation because the Constitution says so. He or she is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those falling under the third sentence of Section 16, Article VII do not have to be confirmed because the Constitution gives Congress the authority to free lower ranking officials whose positions are created by law from that requirement. I believe that we in the Court have no power to add by implication to the list of presidential appointees whom the Constitution in clear and categorical words declares as not needing confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an important constitutional body which helps give fuller expression to the democratic principles inherent in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move for its abolition as a protest against what they believe is too much horsetrading or sectarian politics in the exercise of its functions. Since the President is a genuinely liked and popular leader, personally untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people would want the Commission to routinely rubberstamp those whom she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16 was intended to check abuse or ill-considered appointments by a President who belongs to the latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly represents the people. We should not expect Congress to act only as the selfless Idealists, the well-meaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The masses of our people are poor and underprivileged, without the resources or the time to get publicly involved in the intricate workings of Government, and often ill-informed or functionally illiterate. These masses together with the propertied gentry and the elite class can express their divergent views only through their Senators and Congressmen. Even the buffoons and retardates deserve to have their interests considered and aired by the people's representatives. In the democracy we have and which we try to improve upon, the Commission on Appointments cannot be expected to function like a mindless machine without any debates or even imperfections. The discussions and wranglings, the delays and posturing are part of the democratic process. They should never be used as arguments to restrict legislative power where the Constitution does not expressly provide for such a limitation.

The Commission on Human Rights is a very important office. Our country is beset by widespread insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use force and violent means against those who hold opposite views appears irresistible to the holders of both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the Commission on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be a joint responsibility of the Presidency and Congress, through the Commission on Appointments. She wants a more thorough screening process for these sensitive positions. She wants only the best to survive the process.

Why should we tell both the President and Congress that they are wrong.?

Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel concentrations should receive greater scrutiny in his appointment than the Chairman of the Human Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of the Human Rights Commission as one of the "other officers whose appointments are vested in him in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the Constitution as classifying the chairman among the lower ranking officers who by law may be appointed by the head of an executive department, agency, commission, or board. The Constitution created the independent office. The President was intended to appoint its chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by the Court more than a year ago over two dissents. The President of the Philippines has taken a second look at it, and so too has the Commission on Appointments representing both Houses of the Congress of the Philippines. It appears that they are not exactly certain now that the decision in that case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the Constitution again on the possibility that we may have misread it before.

The ponencia assumes that we were right the first time and that the Mison case is settled — there is no need to re-examine it. It therefore approaches the problem at hand from another perspective and would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not confirmed, conformably to Mison, and could not be replaced with the second appointment on 14 January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman of the Commission on Human Rights is subject to confirmation as required now by both the President of the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-see-it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seeming diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its correctness. I think this is the reason another justification had to be offered to bolster Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights as among the important officers who would not have to be confirmed if the majority view were to be followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation although he is not a constitutional officer with the serious responsibilities of the former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral representative of the regional consultative commission, and the Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need confirmation. When I pointed to these incongruous situations, I was told it was not our place to question the wisdom of the Constitution. What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful developments must give us pause. We may have committed an error in Mison, which is bad enough, and may be persisting in it now, which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988 was an ad interim appointment that although immediately effective upon acceptance was still subject to confirmation. I cannot agree that when the President said the petitioner could and enter into the performance of her duties, "all that remained for Bautista to do was to reject or accept the appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by the President of the Philippines to the Commission on Appointments "for confirmation."

The ponencia says that the appointment did not need any confirmation, being the sole act of the President under the Mison ruling. That would have settled the question quite conclusively, but the opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no question that the petitioner was still validly holding the office by virtue of her ad interim appointment thereto on 17 December 1988. The nomination made later was unnecessary because the ad interim appointment was still effective. When the Commission on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and inviting her to appear before it, it was acting not on the nomination but on the ad interim appointment. What was disapproved was the ad interim appointment, not the nomination. The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is important only as an affirmation of the President's acknowledgment that the Chairman of the Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution.

It does not follow, of course, that simply because the President of the Philippines has changed her mind, and with the expressed support of the Commission on Appointments, we should docilely submit and reverse Mison. That is not how democracy works. The Court is independent. I do suggest, however, that the majority could have erred in that case and that the least we can do now is to take a more careful look at the decision. Let us check our bearings to make sure we have not gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I vote to DENY the petition.

GRIÑO-AQUINO, J.: dissenting:

I believe that the appointments of the chairman and the members of the Commission on Human Rights by the President require review and confirmation by the Commission on Appointments in view of the following provision of Section 16, Article VII of the 1987 Constitution:

SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or

naval captain, and other officers whose appointments are vested in him in this Constitution....

In my view, the "other officers" whose appointments are vested in the President in the Constitution are the constitutional officers, meaning those who hold offices created under the Constitution, and whose appointments are not otherwise provided for in the Charter. Those constitutional officers are the chairmen and members of the Constitutional Commissions, namely: the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are, without excaption, declared to be "independent," but while in the case of the Civil Service Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on Human Rights. Its absence, however, does not detract from, or diminish, the President's power to appoint the Chairman and Commissioners of the said Commission. The source of that power is the first sentence of Section 16, Article VII of the Constitution for:

(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the Constitution.

Therefore, the said appointments shall be made by the President with the consent of the Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on Appointments to review and confirm appointments made by the President is a "derogation of the Chief Executive's appointing power." That power is given to the Commission on Appointments as part of the system of checks and balances in the democratic form of government provided for in our Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President Vicente G. Sinco:

The function of confirming appointments is part of the power of appointment itself. It is, therefore, executive rather than legislative in nature. In giving this power to an organ of the legislative department, the Constitution merely provides a detail in the scheme of checks and balances between the executive and legislative organs of the government. (Phil. Political Law by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

QUINTOS-DELES VS CCC

G.R. No. 83216 September 4, 1989

TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. MASTURA, TRINIDAD A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA CRUZ, TRINIDAD M. DOMINGO, MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET AL., petitioners, vs. THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND OFFICES (C.A.), COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE HOUSE OF REPRESENTATIVES, ET AL., respondents.

BIDIN, J.:

This is a special civil action for prohibition and mandamus with injunction seeking to compel respondent Commission on Appointments to allow petitioner Teresita Quintos-Deles to perform and discharge her duties as a member of the House of Representatives representing the Women's Sector and to restrain respondents from subjecting petitioner's appointment to the confirmation process.

The antecedent facts which gave rise to this petition are as follows:

On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the Constitution. Executive Secretary Catalino Macaraig, Jr. transmitted by letter, also dated April 6,1988 (Annex L) the appointment of the said sectoral representatives to Speaker Ramon Mitra, Jr. as follows:

April 6, 1988

Hon. Ramon V. Mitra, Jr. Speaker, House of Representatives Quezon City

S i r:

Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, the President has appointed the following persons to the seats reserved for sectoral representatives in paragraph (1), Section 5 of Article VI of the Constitution:

1. Teresita Quintos-Deles —-Women

2. Al Ignatius G. Lopez —Youth

3. Bartolome Arteche —-Peasant

4. Rey Magno Teves —-Urban Poor

Copies of their appointments are enclosed.

With best wishes.

Very truly yours,

(SGD.) CATALINO MACARAIG JR

Executive Secretary

On April 18, 1988, the above-mentioned sectoral representatives were scheduled to take their oaths before Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress after the Order of Business. However, petitioner and the three other sectoral representatives- appointees were not able to take their oaths and discharge their duties as members of Congress due to the opposition of some congressmen-members of the Commission on Appointments, who insisted that sectoral representatives must first be confirmed by the respondent Commission before they could take their oaths and/or assume office as members of the House of Representatives. This opposition compelled Speaker Ramon V. Mitra, Jr. to suspend the oath-taking of the four sectoral representatives.

In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on April 25,1988, a letter dated April 11, 1988 of the President addressed to the Commission on Appointments submitting for confirmation the appointments of the four sectoral representatives as follows:

l1 April 1988

The Honorable Jovito R. Salonga The Senate President andThe Members of the Commission on Appointments Congress of the Philippines M a n i l a

Gentlemen:

Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the Constitution, I hereby submit, for confirmation, the appointments of the following persons as Members of the House of Representatives representing the sectors indicated opposite their respective names:

TERESITA QUINTOS-DELES — Women

AL IGNATIUS G. LOPEZ — Youth

BARTOLOME ARTECHE — Peasant

REY MAGNO TEVES — Urban Poor

An early confirmation of their appointments will be appreciated.

Very truly yours,

(Sgd) Corazon C. Aquino

Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V. Mitra, Jr. (Annex V) appealed to the House of Representatives alleging, among others, that since 41 no attempt was made to subject the sectoral representatives* already sitting to the confirmation process, there is no necessity for such confirmation and subjection thereto of the present batch would certainly be discriminatory."

In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner that since "President Corazon C. Aquino has submitted your appointment to the Commission on Appointments for confirmation in a letter dated April 11, 1988, . . . the Commission on Appointments now has sole jurisdiction over the matter."

On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend a Commission on Appointments Committee Meeting scheduled for May 12, 1988 for the deliberation of her appointment as sectoral representative for women (Annex DD). Petitioner sent a reply dated May 11, 1988 explaining her position and questioning the jurisdiction of the Commission on Appointments over the appointment of sectoral representatives (Annex EE).

In the May 12,1988 meeting of the Committee of the Constitutional Commissions and Offices of the Commission on Appointments, chaired by Sen. Edgardo J. Angara, the Committee ruled against the position of petitioner Deles.

Hence, this petition for prohibition and mandamus praying that respondent Commission on Appointments be enjoined from subjecting to confirmation process the petitioner's appointment as sectoral representative for the women's sector and as member of Congress.

Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p. 147); Ma. Iris Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186); Hernani Panganiban, et al. (Rollo, p. 208); Presentacion Castro, et al. (Rollo, p. 215); Sr. Teresa Dagdag, et al. (Rollo, p. 251); and Civil Liberties Union (Rollo, p. 274).

Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral Representative for Women by the President pursuant to Section 7, Article XVIII of the Constitution, does not require confirmation by the Commission on Appointments to qualify her to take her seat in the House of Representatives.

The opposite view is taken by the Solicitor General in his Statement of Position (In lieu of Comment), dated July 15,1988 (Rollo, p. 206) in this wise: "In view of the President's submission d the four sectoral representatives, the petitioner included, to the Commission on Appointments by letter dated April 11, 1988, then confirmation by the Commission on Appointments is required."

On August 15, 1988, respondent Commission on Appointments, in addition to adopting the Statement of Position (in lieu of Comment) submitted by the Solicitor General, likewise submitted its own Statement of Position (In lieu of Comment) and further manifested that (1) the appointment of petitioner Deles was not acted upon by the Commission on Appointments when Congress went into recess as required by the Constitution; (2) the case of petitioner Deles for appointment as sectoral representative to the House of Representatives has become moot and academic not having been finally acted upon at the close of the session of Congress pursuant to See. 23 of the Rules of the Commission (Rollo, pp. 233-234) which reads as follows:

Section 23. Suspension of Consideration of Nomination or Appointments to be Returned to the President.- Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President, and unless resubmitted, shall not again be considered by the Commission.

On January 31, 1989, the Court after noting the reply filed by the petitioner and the rejoinder filed by respondents, resolved to give due course to the petition and the parties were required to submit their respective memoranda (Rollo, p. 309). By way of manifestation and motion dated March 9, 1989 (Rollo, p. 311), the Office of the Solicitor General adopted its statement of position (in lieu of comment) and rejoinder as its memorandum. Petitioners and intervenor Civil Liberties Union submitted their memoranda on March 22, 1989 and March 30, 1989, respectively. A supplemental statement of position (in lieu of memorandum) dated March 31, 1989 was filed by respondent Commission.

The Constitution provides that the House of Representatives shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law, who shall be elected from the legislative districts and those who as provided by law, shall be elected thru a party-list system. The party-list representatives shall constitute 20% of the total number of representatives or fifty (50) seats. One-half or twenty-five (25) of the seats allocated to party-list representatives is reserved for sectoral representatives. The reservation is limited to three consecutive terms after ratification of the 1987 Constitution. Thus, Section 5 (1) and (2), Article VI of the 1987 Constitution provides:

SEC. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected

through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

Under Section 7, Article XVIII of the Constitution, the appointment of sectoral representatives is vested upon the President until otherwise provided by law, as follows:

SEC. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (1), Section 5 of Article VI of this Constitution.

The issue is, whether the Constitution requires the appointment of sectoral representatives to the House of Representatives to be confirmed by the Commission on Appointments. Section 16, Article VII of the Constitution enumerates among others, the officers who may be appointed by the President with the consent of the Commission on Appointments, as follows:

SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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

In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article VII of the Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section 16, Article VII require confirmation by the Commission on Appointments, as follows:

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints.

xxx xxx xxx

(T)he purposive intention and deliberate judgment of the framers of the 1987 Constitution (is) that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseeable effects thereof.

Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments.

Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen. Jovito Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein the Court held:

The Mison case was the first major case under the 1987 Constitution and in constructing Sec. 16, Art. VII of the 1987 Constitution, ... this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of See. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, 'the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.' All other appointments by the President are to be made without the participation of the Commission on Appointments.

Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is undubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are subject to confirmation by the Commission on Appointments (Sarmiento v. Mison, supra).

Nevertheless, there are appointments vested in the President in the Constitution which, by express mandate of the Constitution, require no confirmation such as appointments of members of the Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and the Ombudsman and his deputies (Sec. 9, Art. XI). No such exemption from confirmation had been extended to appointments of sectoral representatives in the Constitution. Petitioner was appointed on April 6, 1988 pursuant to Art. XVIII, Section 7 and Art. VII, Section 16, paragraph 2 of the Constitution, to wit:

6 April 1988

Madam:

Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, you are hereby appointed MEMBER OF THE HOUSE OF REPRESENTATIVES.

By virtue hereof, you may qualify to said position furnishing this office with copies of your oath of office.

Very truly yours,

(Sgd.) CORAZON C. AQUINO

Hon. TERESITA QUINTOS-DELES

(Annex "M", Petition, Rollo, p. 108.)

The invocation of Art. XVIII, Section 7 of the Constitution as authority for the appointment of petitioner places said appointment within the ambit of the first sentence of Section 16, Art. VII; hence, subject to confirmation by the Commission on Appointments under the Mison doctrine. Petitioner's appointment was furthermore made pursuant to Art. VII, Section 16, paragraph 2 which provides:

SEC. 16. ...

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

The reference to paragraph 2, Section 16 of Article VII as additional authority for the appointment of petitioner is of vital significance to the case at bar. The records show that petitioner's appointment was made on April 6, 1988 or while Congress was in recess (March 26, 1988 to April 17, 1988); hence, the reference to the said paragraph 2 of Section 16, Art. VII in the appointment extended to her.

Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of petitioner is, the recognition by the President as appointing authority that petitioner's appointment requires confirmation by the Commission on Appointments. Under paragraph 2, Section 16, Art. VII, appointments made by the President pursuant thereto "shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." If indeed appointments of sectoral representatives need no confirmation, the President need not make any reference to the constitutional provisions above-quoted in appointing the petitioner, As a matter of fact, the President in a letter dated April 11, 1989 had expressly submitted petitioner's appointment for confirmation by the Commission on Appointments. Considering that Congress had adjourned without respondent Commission on Appointments having acted on petitioner's appointment, said appointment/nomination had become moot and academic pursuant to Section 23 of the Rules of respondent Commission and "unless resubmitted shall not again be considered by the Commission."

Petitioners further contend that nowhere in the Constitution nor in Executive Order No. 198 is mention made of the need for petitioner's appointment to be submitted to the Commission on Appointments for confirmation. Executive Order No. 198 promulgated on June 18, 1687 before the convening of Congress, is denominated: "Providing for the Manner of Nomination and Appointment of Sectoral Representatives to the House of Representatives." We agree with the submission of respondent Commission that the provisions of Executive Order No. 198 do not deal with the manner of appointment of sectoral

representatives. Executive Order No. 1 98 confines itself to specifying the sectors to be represented, their number, and the nomination of such sectoral representatives.

The power of the President to appoint sectoral representatives remains directly derived from Section 7, Article XVIII of the Constitution which is quoted in the second "Whereas' clause of Executive Order No. 198. Thus, appointments by the President of sectoral representatives require the consent of the Commission on Appointments in accordance with the first sentence of Section 16, Art. VII of the Constitution. More to the point, petitioner Deles' appointment was issued not by virtue of Executive Order No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of the Constitution which require submission to the confirmation process.

WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is hereby DISMISSED for lack of merit. Without pronouncement as to costs.

SO ORDERED.

CALDERON VS CARALE

G.R. No. 91636 April 23, 1992

PETER JOHN D. CALDERON, petitioner, vs. BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

PADILLA, J.:

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1

The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:

. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out,

while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments.

. . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. . . .

. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the president) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII." (emphasis supplied)

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:

. . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the president with the consent of the Commission on Appointments. The president appoints the Chairman and Members of The Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights.

Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission on Constitutional Commissions, et al., 4 the power of confirmation of the Commission on Appointments over appointments by the President of sectoral representatives in Congress was upheld because:

. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are subject to confirmation by the Commission on Appointments.

From the three (3) cases above-mentioned, these doctrines are deducible:

1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election).

2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law.

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It provides in Section 13 thereof as follows:

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The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and Employment, and shall be subject to the Civil Service Law, rules and regulations. 5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC representing the public, workers and employers sectors. The appointments stated that the appointees may qualify and enter upon the performance of the duties of the office. After said appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the places of assignment of the newly appointed commissioners.

This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President of the Philippines to the respondents Chairman and Members of the National Labor Relations Commission (NLRC), without submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715.

Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar, the President issued permanent appointments to the respondents without submitting them to the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the Commission on Appointments of such appointments.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses Section 16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the following exposition:

As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments is required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in

the President by the Constitution, such as the members of the various Constitutional Commissions. With respect to the other officers whose appointments are not otherwise provided for by the law and to those whom the President may be authorized by law to appoint, no confirmation by the Commission on Appointments is required.

Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by the Commission on Appointments, the Constitution would have said so by adding the phrase "and other officers required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on Appointments" at the end of the second sentence. Evidently, our Constitution has significantly omitted to provide for such additions.

The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of the Constitutional Commission reads as follows:

"The President shall nominate and, with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts or in the heads of the department."

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935 Constitution and in the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517.

First, in both of them, the appointments of heads of bureaus were required to be confirmed by the Commission on Appointments.

Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided for by law to appoint" are expressly made subject to confirmation by the Commission on Appointments. However, in the final version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution, the appointment of the above mentioned officers (heads of bureaus; other officers whose appointments are not provided for by law; and those whom he may be authorized by law to appoint) are excluded from the list of those officers whose appointments are to be confirmed by the Commission on Appointments. This amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the intent of the framers to exclude such appointments from the requirement of confirmation by the Commission on Appointments.

Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article VII thereof.

Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation and appointment operates. This is only true of the first group enumerated in Section 16, but the word nominate does not any more appear in the 2nd and 3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd sentences needs no confirmation. 6

The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require confirmation by the Commission on Appointments of appointments extended by the president to

government officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the Commission on Appointments.

To resolve the issue, we go back to Mison where the Court stated:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the president may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence of the section from the same requirement. . . .

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Member of the

National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. 8 No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. 9

. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretado legis vim obtinent" — the interpretation placed upon the written law by a competent court has the force of law. 10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner. Can legislation expand a constitutional provision after the Supreme Court has interpreted it?

In Endencia and Jugo vs. David, 11 the Court held:

By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office," found in Section 9, Article VIII of the Constitution, referring to the salaries of judicial officers.

xxx xxx xxx

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied).

The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).

We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department that would be neither wise nor desirable, being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers. 14 (Emphasis supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it sets out to enact legislation and it must take into account the relevant constitutional prohibitions. 15

. . . The Constitution did not change with public opinion.

It is not only the same words, but the same in meaning . . . and as long as it it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted and adopted by the people . . . 16

The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment upon the question." 17

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:

3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; . . .

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted.

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.

SO ORDERED.

Separate Opinions 

GUTIERREZ, JR., concurring:

When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a dissent because I felt that the interpretation of Section 16, Article VII by the majority of the Court results in absurd or irrational consequences. The framers could not have intended what the majority ruled to be the meaning of the provision. When the question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I reiterated my dissent and urged a re-examination of the doctrine stated in Sarmiento v. Mison.

The issue is again before us. Even as I continue to believe that the majority was wrong in the Sarmiento and Bautista cases, I think it is time to finally accept the majority opinion as the Court's ruling on the matter and one which everybody should respect. There will be no end to litigation if, everytime a high government official is appointed without confirmation by the Commission on Appointments, another petition is filed with this Court.

I, therefore, VOTE with the majority to DISMISS the PETITION.

CRUZ, J., dissenting:

I dissent on the basis of my dissent in Sarmiento v. Mison, which I believe should be re-examined instead of being automatically re-affirmed simply because of its original adoption. I do not believe we should persist in error on the ground merely of adherence to judicial precedent, however unsound.

STEPS IN THE APPOINTING PROCESS

REGULAR APPOINTMENTS

APPOINTMENTS WHICH DOES NOT RENDER CONFIRMATION

APPOINTMENT TO CAREER SERVICE OF THE CIVIL SERVICE

TOMALI VS CSC

G.R. No. 110598 December 1, 1994

MONA A. TOMALI petitioner, vs. CIVIL SERVICE COMMISSION, OFFICE ON MUSLIM AFFAIRS (OMA) and ROCAINA M. LUCMA, respondents.

VITUG, J.:

In this special civil action for certiorari, petitioner questions her "replacement" by private respondent in a contested position in the Office on Muslim Affairs.

On 01 July 1990, petitioner Mona A. Tomali was appointed Development Management Officer II ("DMO II") in the Office on Muslim Affairs ("OMA"). The appointment was extended by then OMA Executive Director Dimasangcay A. Pundato. She assumed the duties and functions of the office four months later, or on 01 November 1990, at which time, the appointment had not yet been transmitted to the Civil Service Commission ("CSC") for approval.

Prior to her assumption to the new position, petitioner had worked in different capacities with the Mindanao State University starting as Records Clerk (01 June 1983 to 31 December 1986), Clerk Typist (02 January 1987 to 30 June 1989), and, finally, as "Budget Assistant" (01 July 1989 to 31 October 1990). 1

On 16 July 1991, the new Director of the OMA, Dr. Ali Basir Lucman, revoking the previous incomplete appointment of petitioner, appointed private respondent Rocaina M. Lucman to the position in question (DMO II). Petitioner, on 29 July 1991, sent public respondent OMA a letter protesting her replacement. On 01 August 1991, the Chief of the Human Resources Management Division of the OMA communicated to petitioner the disapproval/expiration of her appointment. 2 Forthwith, private respondent took her oath of office and assumed the duties and functions of DMO II.

On 12 August 1991, petitioner reiterated her protest. 3 The Merit Systems Protection Board ("MSPB"), acting thereon, rendered a decision, dated 23 July 1992, dismissing the protest/complaint for lack of merit. MSPB held:

Glaring is the fact that protestant's appointment to the contested position was not approved by the Civil Service Commission, hence, incomplete. In this regard, Section 11, Rule V, of the Omnibus Rules Implementing Book V of Executive Order No. 292, Administrative Code of 1987 is clear and explicit. Said provision reads, thus:

Sec. 11. An appointment not submitted to the Commission, within thirty (30) days from the date of issuance, which shall be the date appearing on the face of the instrument, shall be ineffective.

As applied to the case of the herein protestant, it appears that the latter has no basis in law to cling to the contested position. Her prior continuous stay in office was at most by mere tolerance of the appointing authority. As her appointment is incomplete for lack of the requisite approval of the Civil Service Commission or its proper Regional or Field Office, no right to security of tenure as guaranteed by law and the Constitution attaches thereto or for incumbent to invoke. . . . .

xxx xxx xxx

That being so, the proper appointing authority, in this case, the OMA Executive Director may, in the exercise of sound discretion, cancel or revoke the said incomplete appointment and appoint another person.

The circumstance showing that the non-approval of protestant's appointment was due to the belated transmittal thereof to this Commission is of no consequence nor improve her lot as a holder of an incomplete appointment. There is no showing that the non-submission was motivated by bad faith, spite or malice or at least attributable to the fault of thenewly-installed OMA Executive Director. 4

Her request for reconsideration having been denied on 27 November 1992, petitioner appealed to the CSC. In its Resolution No. 93-945, dated 12 March 1993, the Commission dismissed the appeal for lack of merit. 5

Hence, the instant recourse to this Court.

We fail to see any merit in the petition.

An appointment to a position in the civil service is required to be submitted to the CSC for approval in order to determine, in main, whether the proposed appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment are followed; thus:

Sec. 9. Powers and Functions of the Commission. — The Commission shall administer the Civil Service and shall have the following powers and functions:

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(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the

appointees do not possess the appropriate eligibility or required qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission, if this should take place, without prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or rules: Provided, finally, That the Commission shall keep a record of appointments of all officers and employees in the civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by the appointing authority within thirty days from issuance, otherwise the appointment becomes ineffective thirty days thereafter. 6

The Omnibus Rules Implementing Book V of Executive Order No. 292, also known as the Administrative Code of 1987, among other things, provides:

Sec. 11. An appointment not submitted to the Commission within thirty (30) days from the date of issuance which shall be the date appearing to the face of the appointment, shall be ineffective. . . . . 7

Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective. 8 Without the favorable certification or approval of the Commission, in cases when such approval is required, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the appointing authority. 9 Until an appointment has become a completed act, it would likewise be precipitate to invoke the rule on security of tenure. 10

Petitioner faults public respondents for their failure to have her appointment properly attended to and timely acted upon and for, in effect, allowing her in the meanwhile to assume the office in question. In Favis vs. Rupisan, 11 this Court has said:

The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not approved, may only be considered as a de facto officer.

Petitioner herself would not appear to be all that blameless. She assumed the position four months after her appointment was issued or months after that appointment had already lapsed or had become ineffective by operation of law. Petitioner's appointment was issued on 01 July 1990, but it was only on 31 May 1991 that it was submitted to the CSC, a fact which she knew, should have known or should have at least verified considering the relatively long interval of time between the date of her appointment and the date of her assumption to office. The CSC, such as to be expected, disapproved the appointment 12 in consonance with Presidential Decree No. 807.

When private respondent Lucman was thus appointed DMO II on 16 July 1991, petitioner could not be said to have theretofore earned a valid tenure to the same position. In its resolution of 12 March 1993, the CSC, which dismissed petitioner's appeal, said:

The instant case is about the recall of Tomali's appointment as Development Management Officer II, Office on Muslim Affairs in favor of Rocaina Lucman prior to the approval by the Commission. Subsequently, Tomali filed a protest against the appointment of Rocaina Lucman.

It may be noted that the issue on the said recall of Tomali's appointment had already been the subject matter in CSC Resolution No.91-1237, wherein the Commission ruled as follows:

WHEREFORE, foregoing premises considered, this Commission upholds the power of the appointing authority to recall an appointment. Accordingly, the separation of Mona Tomali is declared to be in order. (Emphasis supplied.)

Further, a motion for reconsideration was denied in CSC Resolution No. 91-1463, dated December 3, 1991.

Considering that Tomali had already been separated from the service upon recall of her appointment, her protest against the appointment of Rocaina Lucman has no merit. She has no more personality to file a protest. 13

It was well within the authority and discretion of the new OMA Director, therefore, to appoint private respondent, and such prerogative could not be questioned even on a showing that petitioner might have been better qualified for the position.

The rule has always been that an appointment is essentially a discretionary act, performed by an officer in whom it is vested according to his best judgment, the only condition being that the appointee should possess all the qualifications required therefor. 14 There is nothing on record to convince us that the new OMA Director has unjustly favored private respondent nor has exercised his power of appointment in an arbitrary, whimsical or despotic manner.

In sum, we see no grave abuse of discretion on the part of public respondents in their questioned dismissal of petitioner's protest.

WHEREFORE, the petition for certiorari is DISMISSED. No special pronouncement on costs.

SO ORDERED.

LOPEZ VS CSC

G.R. No. 92140 February 19, 1991

REYNALDO D. LOPEZ, petitioner, vs. CIVIL SERVICE COMMISSION and ROMEO V. LUZ, JR., respondents.

GUTIERREZ, JR., J.:p

Petitioner Reynaldo Lopez assails the nullification by the Civil Service Commission of his appointment as Harbor Master of the Manila South Harbor.

In 1983, petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto Abellana, was appointed as Assistant Harbor Master at Manila International Container Terminal, Manila South Harbor and Manila North Harbor, respectively.

Pursuant to Executive Order No. 125, the Ministry (now Department) of Transportation and Communications (DOTC) was reorganized. Hence, the reduction of the number of Assistant Harbor Masters (now designated as Harbor Masters) in the Philippine Ports Authority (PPA) from three (3) to two (2). A reevaluation of the qualifications of petitioner Lopez, Luz, and Abellana was conducted by a

placement committee of the PPA to determine who should assume the two positions. The PPA General Manager, Rogelio A. Dayan, appointed petitioner Lopez as Harbor Master for the South Harbor after considering the evaluation conducted by the Placement Committee of the PPA the results of which reveal that petitioner was the most outstanding among the three. The evaluation was formally conducted and superseded the one earlier handled by a task force. It took into account the following: education and training; experience, physical characteristics and personality traits; and performance of each candidate. The records show that respondent Luz rated third.

Luz protested Lopez's appointment after it was approved by the Assistant Director of the Civil Service Field Office, Guillermo R. Silva.

On February 15, 1989, the protest/appeal was denied by the PPA General Manager who explained that Luz was not qualified for any of the two slots according to the over-all standing of the contenders.

Luz then appealed to the Civil Service Commission (CSC) which, on July 6, 1989, ruled that while the candidates were all qualified, "there was no finding who among the three contenders is considered the most qualified and competent to merit appointment . . ., the previous assessments of the candidates having been found defective and not in accordance with the law and implementing regulations." The CSC directed that "comparative assessments" be made by an appropriate Placement Committee. These assessments would then be the basis of the appointments.

On October 17, 1989, the CSC denied a motion for reconsideration filed by the PPA and ordered the submission of the results of the re-assessment.

On November 10, 1989, the PPA submitted to the Commission the results of the re-assessment conducted by its Placement Committee which was reconvened for that purpose. The results explained that the Committee utilized evaluation instruments that have been validated for use in promotions to assess performance of the candidates, their education and training, experience and outstanding accomplishments. It, however, noted certain constraints which led to the adoption of modified measures. For instance, it noted the absence of an established instrument to determine Physical Characteristics and Personality Traits so that it had to resort to an assessment conducted by a professional psychiatrist-consultant on the mental alertness, reaction to pressure, personality and dependability of the candidates. Also, in the absence of complete performance appraisal ratings of all the three candidates for the years 1987 to 1988, it utilized only the available ratings for two rating periods i.e., in January-June 1986 and January-June 1987 in which all three candidates were rated. It did not rate outstanding accomplishments due to the absence of a valid instrument, but it considered two (2) commendations given to Luz for his past performance. Moreover, it did not measure each of the candidates' Potential which accounts for 25 points out of the total standard points. It set the maximum score to a total of 70 points only. The comparative evaluation of the candidates for the position of Harbor Master showed that petitioner Lopez garnered — 51 points, Abellana — 41.75 points, and respondent Luz — 39.75 points.

Despite this compliance by the PPA, the Commission, on February 14, 1990, found that the re-assessment was not in order. It ruled that the immediate supervisor of respondent Luz was in the best position to assess the competence of the respondent and not a psychiatric-consultant who was merely a contractual employee and susceptible to partiality. The Commission stressed that the Placement Committee's current assessment ignored some of the performance appraisal ratings previously made on respondent Luz, as well as the PPA 201 files containing only Luz's record of achievements. It also noted other factors which allegedly would affect his personality traits rating. Thus, it directed the appointment of Luz as the Harbor Master instead of the petitioner.

Hence, this petition.

Lopez now alleges that his constitutional right to due process of law has been violated because he was never informed or notified of the appeal of respondent Luz, the entire proceedings held on the case, and

the resolutions of the Commission. He was never invited for comment during the pendency of the appeal. He allegedly learned about the appeal only after being informed by the PPA that his appointment had been revoked and that respondent Luz was directed to assume the position.

The respect for the right to due process in actions before administrative agencies and constitutional commissions includes the basic requirement of granting the person, whose appointment is being contested, an opportunity to be heard. It is conceded that petitioner Lopez was merely a nominal party in the appeal such that the appellee therein was actually the PPA whose act of appointing was being questioned. Nevertheless, the Commission should have taken into account the right of the subject person involved to be informed of the appeal so that he may be given a chance to present his side. A fundamental requirement of procedural due process demands that the interested parties must have an opportunity to present their case and the decision or resolution should be supported by substantial evidence presented by the affected parties before the tribunal (Ang Tibay v. CIR, 69 Phil. 635 [1940]).

The petitioner asserts that the Civil Service Commission gravely and seriously erred in nullifying his appointment and instead substituting its decision for that of the PPA. For its part, the respondent Commission alleged that the selection made by the PPA was discriminatory against Luz and did not conform to the requirements of the law, because other performance ratings of Luz were not given weight. It justified the reversal of the appointment by saying that the Constitution and Rep. Act No. 6656 require that an appointment satisfies the merit and fitness standard, or that "the most qualified and competent shall be preferred."

The private respondent maintains basically the same arguments set forth by the respondent Commission.

The records explicitly show that the Placement Committee of the PPA disclosed the manner by which it assessed all the candidates. It specifically took note of certain limitations like the absence of ratings of all candidates for certain periods which prompted it to avail of those instruments showing data in which all three of the contenders were subjected to evaluation. This was resorted to in the desire to achieve fairness to all candidates. It admitted having acknowledged other performance ratings and commendations received by respondent Luz. However, all ratings considered, the Placement Committee was of the opinion that the petitioner is the most qualified. The appointing power was given a fair and honest appraisal which fully considered the strengths and weaknesses of the candidates. The petitioner was appointed.

The role of the Civil Service Commission in establishing a career service and in promoting the morale, efficiency, integrity, responsiveness, and courtesy among civil servants is not disputed by petitioner Lopez. On the other hand, the discretionary power of appointment delegated to the heads of departments or agencies of the government is not controverted by the respondents. In the appointment, placement and promotion of civil service employees according to merit and fitness, it is the appointing power, especially where it is assisted by a screening committee composed of persons who are in the best position to screen the qualifications of the nominees, who should decide on the integrity, performance and capabilities of the future appointees. Under Section 9 (h) Presidential Decree No. 807 which authorizes the respondent Commission to

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission, if this should take place, without prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or rules; Provided, finally, that the Commission shall keep a record of appointments of all officers and employees in the civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by the appointing authority within

thirty days from issuance, otherwise, the appointment becomes ineffective thirty days thereafter. (Emphasis supplied)

the Commission's power does not extend to considerations other than those enumerated in the law such as the belief that there are others more qualified. The law limits the Commission's authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. To go beyond this would be to set at naught the discretionary power of the appointing authority and to give to the Commission a task which the law (Sec. 6, Rep. Act No. 6656) does not confer. This does not mean that the Commission's act of approving or disapproving becomes ministerial. Far from it. Section 9 (h) of the Civil Service Law permits the exercise by the Commission of its judgment upon the validity of the appointment by specifying the criterion for approval of appointments. (Meralco Securities Corp. v. Savellano, 117 SCRA 804 [1982]) The authority given to the Commission, therefore, is very far from a mere mechanical act in which no discretion or exercise of judgment is allowed.

The Court has defined the parameters within which the power of approval of appointments shall be exercised by the respondent Commission. In the case of Luego v. Civil Service Commission, 143 SCRA 327 [1986], the Court ruled that all the Commission is actually authorized to do is to check if the appointee possesses the qualifications and appropriate eligibility: "If he does, his appointment is approved; if not it is disapproved." We further ruled that the Commission has no authority to revoke an appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority. (Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]).

The power of appointment exercised after a judicious recommendation made by a placement Committee of the agency concerned is:

(A)n essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualification required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which onlyu the appointing authority can decide. (Emphasis supplied; Luego v. Civil Service Commission, supra, at p. 332)

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. (Ocampo v. Subido, 72 SCRA 433 [1976]; Torres v. Borja, 56 SCRA 47 [1974]; Santiago v. Civil Service Commission, 178 SCRA 733 [1989] He has a wide latitude of choice as to the person to appoint where the law does not impose rigid conditions. (Reyes v. Abeleda, 22 SCRA 825 [1968]). Section 6, Rep. Act No. 6656 on government reorganization merely provides that the selection or placement should be done through the creation of a Placement Committee the members of which are representatives of the head of the agency as well as representatives of the head of the agency as well as representatives of the employees. The committee's work is recommendatory and does not fix a stringent formula regarding the mode of choosing from among the candidates. Thus, the respondents' arguments on the alleged inconsistencies and non-conformity with Rep. Act No. 6656 in rating the contenders are without merit.

In view of the foregoing, the Court is not the least bit convinced by the contentions of the public and private respondents. It is apparent from the records that the PPA disclosed all the instruments used, the limitations and the adjustments made to the end that the results would be fair to all the candidates alike. The hiring of an independent psychiatrist-consultant, for instance, proves the inclination of the committee towards impartiality. More important, the Court emphasizes that the Commission has no authority to substitute its judgment for that of the Philippine Ports Authority when it comes to evaluating the

performance, personality, and accomplishments of candidates who all have the necessary eligibility and legal qualifications.

WHEREFORE, the petition is hereby GRANTED. The resolutions of the respondent Civil Service Commission dated July 6, 1989, October 17, 1989, and February 14, 1990 are REVERSED and SET ASIDE. Petitioner REYNALDO D. LOPEZ is declared to be entitled to the office in dispute by virtue of this permanent appointment thereto effective October 1, 1988. The temporary restraining order issued by the Court on March 22, 1990 is made permanent.

SO ORDERED.

VACANCY

COSTIN VS QUIMBO

G.R. No. L-32271 January 27, 1983

MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as Chief of Police; FRANCISCO TISADO, OCTAVIO TRAYA as Municipal Mayor; DOMINGO IPONG as Municipal Treasurer; and THE MUNICIPAL COUNCIL OF ABUYOG, LEYTE, petitioners, vs. HONORABLE LOPE C. QUIMBO, Judge of the Court of First Instance of Leyte, and HIGINIO VERRA, respondents.

GUTIERREZ, JR., J.:

In this petition for review, the petitioners seek the annulment or reversal of the decision of the Court of First Instance of Leyte in Civil Case No. 3606, entitled Higinio Verra v. Marcial Costin et al. In that case for a writ of quo warranto with mandamus, the respondent court declared Verra entitled to reinstatement with payment of salaries for the whole period from his illegal separation from the service to the date of his reinstatement.

Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte since January 1, 1949. He was extended a promotional appointment as sergeant of police on October 15, 1958. On November 25, 1959, the outgoing municipal mayor of Abuyog accorded Lajer another promotional appointment as chief of police. This last appointment was not attested and approved as required by law.

On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the police department. On the same day, the municipal mayor extended to respondent Higinio Verra a permanent appointment as Chief of Police of Abuyog with a salary of P2,280.00 per annum. Verra immediately took over the position. His appointment was eventually approved as permanent under Section 24 (b) of Republic Act 2260 by the Commissioner of Civil Service.

On January 19, 1960, Lajer and the eight members of the police force filed an action for mandamus (Civil Case No. 2713) against the municipal mayor, municipal treasurer and the municipal council of Abuyog, contesting their separation from the service.

While this petition for mandamus was pending, there was again a change in the municipal administration of Abuyog, Leyte as a result of the 1963 local elections. The newly elected municipal mayor dismissed respondent Verra from office on January 16, 1964. Verra was replaced by Victoriano Silleza officer-in-charge, on January 17, 1964 until October, 1964 when petitioner Marcial Costin was appointed chief of police.

On December 29, 1964, respondent Verra filed Civil Case No. 3606 for quo warranto with mandamus against Marcial Costin the municipal mayor, and the municipal treasurer, questioning the legality of his

separation alleging that he could not be dismissed as chief of police because he was a civil service eligible and in possession of an appointment to the position of chief of police of Abuyog, Leyte duly attested "Permanent" by the Civil Service Commission.

On January 22, 1966, the mandamus suit (Civil Case No. 2713) filed by Lajer and his companions, which had been appealed was decided by the Court of Appeals CA-G.R. No. 29313-R). The appellate court found that Lajer ,Tomines and Jervoso "were illegally removed from office and are, the afore entitled to reinstatement to their respective positions with payment of the salaries they failed o receive. "

As a result of the appellate decision, petitioner (then mayor) Tisado reinstated Lajer as chief of police on April 1, 1966.

On July 24, 1966, respondent Verra amended his petition in Civil Case No. 3606, impleading Lajer as additional respondent therein.

On November 7, 1968, respondent Verra filed a second amended petition including as respondents the following: Octavio Traya, who succeeded Tisado as mayor; Lionel Kanen who succeeded Lajer as chief of police Lajer retired from the service on February 1, 1968); Domingo Ipong who succeeded Cuyno (deceased) as municipal treasurer; and the Municipal Council of Abuyog, which appropriates funds for the office in question.

On December 2, 1969, respondent judge rendered his decision in Civil Case No. 3606, declaring that Verra is entitled to reinstatement with salary to be paid to him for the Whole period of his illegal separation to the date of his reinstatement. The court also ordered the municipal mayor to reinstate Verra immediately and the municipal treasurer to pay his salary. This decision is now before us for review.

Hence, the present petition with the following assignments of errors:

I. THAT THE HONORABLE COURT A QUO ERRED IN DECLARING THAT THE COURT OF APPEALS IN ITS DECISION ON CIVIL CASE C.A.-G.R. NO. 29313-R (Civil Case No. 2713), CFI, LEYTE) ORDERED THE REINSTATEMENT OF PETITIONER ESTANISLAO LAJER TO THE POSITION OF SERGEANT OF POLICE OF ABUYOG, LEYTE AND NOT TO THE POSITION OF CHIEF OF POLICE;

II. THAT THE HONORABLE COURT A QUO ERRED IN NOT DECLARING THAT THERE WAS NO VACANCY IN THE OFFICE OF CHIEF OF POLICE OF ABUYOG, LEYTE TO WHICH RESPONDENT HIGINIO VERRA COULD HAVE BEEN VALIDLY AND EFFECTIVELY APPOINTED;

III. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT THE ISSUE INVOLVED IN THIS CASE IS THE LEGALITY OF RESPONDENT HIGINIO VERRAS REMOVAL FROM THE SERVICE AS CHIEF OF POLICE AND NOT THE VALIDITY OF HIS APPOINTMENT THERETO;

IV. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT THE SEPARATION OF RESPONDENT HIGINIO VERRA FROM THE OFFICE OF THE CHIEF OF POLICE WAS ILLEGAL;

V. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT RESPONDENT HIGINIO VERRA NOT BEING A PARTY IN CIVIL CASE NO. 2713 CFI LEYTE) FOR MANDAMUS, IS NOT BOUND BY ITS DECISION THEREON;

VI. THAT, FINALLY, THE HONORABLE COURT A QUO ERRED IN ORDERING THE REINSTATEMENT OF OFT MENTIONED HIGINIO VERRA TO THE POSITION OF CHIEF OF POLICE.

The foregoing assignments of errors may be narrowed down to the following issues:

1. Whether or not the appointment of respondent Higinio Verra to the position of Chief of Police of Abuyog, Leyte, was valid and consequently his removal therefrom illegal.

2. Whether the Court of Appeals in its decision in C.A.-G.R. No. 29313-R (Civil Case No. 2713-CFI, Leyte) ordered the reinstatement of petitioner Lajer to the position of Sergeant of Police or Chief of Police.

3. Whether or not respondent Verra is bound by the decision of the lower court in Case No. 2713-CFI, Leyte, for mandamus, not being a party to it.

With respect to the first issue, the petitioners argue that the appointment issued in favor of respondent Verra as chief of police on January 14, 1960, was invalid and ineffective because the said position was not vacant from the time Lajer was illegally separated on January 14, 1960, up to the time he was actually reinstated. This is, according to the petitioners, premised on the fact that the Court of Appeals in deciding Civil Case No. 2713, CFI- Leyte, ordered Lajers reinstatement which also legalized the dismissal of respondent Verra.

Respondent Verra on the other hand, contends that the office in question was legally vacant when he was appointed thereto because Lajers appointment was never attested as required by law or incomplete, and, therefore, never became effective. It is further contended that Lajers appointment as chief of police was temporary in character and terminable at the pleasure of the appointing authority and when Lajer was separated from the office of chief of police, the position became legally and physically vacant. Verra also claims that since he is a civil service eligible and his appointment as chief of police was attested as permanent under Section 20 of Republic Act 2260 and served as such for four (4) years and two (2) days when he was dismissed without cause, his dismissal is illegal.

We find the petition meritorious.

When respondent Verra was appointed chief of police on January 14, 1960, Lajer had just been dismissed from office with several other members of the police force. The validity of Verras appointment, therefore, hinges on the legality of Lajers removal. It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appoint. ment validly terminated.

The lower court's error lies in its looking at the issues primarily from the viewpoint of Verras removal, his qualifications and eligibility for the position, and whether or not his dismissal was valid. In the process, the lower court overlooked the fact that Verra could not have been permanently appointed to the contested position because no less than the Court of Appeals had declared that his predecessor, Estanislao Lajer was illegally terminated from office and must be reinstated to his former position.

Respondent Verra argues that Lajers appointment as chief of police was temporary and terminable at the pleasure of the appointing power.

The private respondent is correct in asserting that when the promotional appointment of Lajer was made in 1959, it could not be considered final or complete. Under Section 2(a) of Rule VI, the Civil Service Rules implementing Section 16(g) of Republic Act 2260, an appointment extended by an officer duly

empowered to make it is not final and complete until after the Commissioner of Civil Service has certified that such an appointment may be made. (Gorospe v. Secretary of Public Works and Communications et al. 105 Phil. 129L)

It is likewise true that under Section 20 of Republic Act 2260 which, in part, provides:

SEC. 20. Delegation in the Civil Service Commission and to the Agencies. -... Appointments by ... municipal mayors shall become effective upon issuance of such appointments and upon attestation by the provincial treasurer in the case of appointments made by ... municipal mayors ... . All appointments made by the ... municipal mayors ... shall, after being attested to by the respective provincial treasurer ... be forwarded within ten days to the Commissioner of Civil Service for review pursuant to Civil Service law and rules. If within one hundred eighty days after receipt of said appointments, the Commissioner of Civil Service shall not have made any correction or revision, then such appointments shall be deemed to have been properly made. ...

the attestation by the provincial treasurer of Leyte was necessary to make the appointment of petitioner Lajer effective.* However, these requirements could not be complied with because Lajer who had been appointed on November 25, 1959 was replaced on January 14, 1960 by the new mayor of the municipality who appointed Verra in his stead As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1076), the incoming mayor should have awaited the action of the provincial treasurer and later, the Commissioner of Civil Service, before appointing his own protege to a position with an incumbent occupying it. Respondent Verra cannot rely on the absence of an attestation from the provincial treasurer and a certification from the Civil Service Commissioner insofar as Lajers appointment is concerned because by the fact of Verras appointment, these requirements could no longer be fulfilled. Mayor Octavio Traya took the appointments away from the office of the Provincial Treasurer before they could be acted upon. The Commissioner could no longer act within 180 days.

The insuperable factor, however, which stands in the way of Verras reinstatement with backwages for eighteen (18) years from 1964 to the present is the Court of Appeals decision in Lajer et al. v. Traya et al. (CA- G.R. No. 29313-R, January 22, 1966). The Court of Appeals was presented squarely with the issue of whether or not Estanislao Lajer and seven other petitioners were illegally separated from the service by Mayor Octavio Traya In a decision penned by Justice Salvador V. Esguerra, concurred in by Presiding Justice Conrado V. Sanchez and Justice Magno S. Gatmaitan, the First Division of the Court of Appeals ruled that Estanislao Lajer Mariano Tomines, and Melecio Jervoso were illegally removed from office and must be reinstated.

Respondent's Verra now contends that Lajer was ordered reinstated to the position of sergeant and not chief of police. Mr. Verra cannot read into a Court of Appeals decision something which is not there.

Mr. Lajer did not go to court to contest the position of police sergeant or to question his removal as police sergeant, He was never removed from a position as sergeant of police, Lajer filed a petition for mandamus to be reinstated as chief of police. The January 30, 1961 decision of Judge S. C. Moscoso of tile Court of First Instance of Leyte discusses an appointment as chief of police. When the decision ordering Lajers reinstatement, was appealed to the Court of Appeals, the appellate court specifically described petitioner Lajer as chief of police and petitioner Mariano Tomines as police sergeant. When Lajer and Tontines were ordered reinstated, it was to the said positions as chief of police and police sergeant respectively.

The argument of respondent, Verra that Mayor Tisado should have refrained from reinstating Lajer as chief of police notwithstanding the decision of the Court of Appeals because he, Verra had filed a case with the Court of First Instance contesting the same position betrays a lack of understanding of a final and executory decision of an appellate tribunal. The decision of the Court of Appeals superseded any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue

and the same facts. It was precisely the termination of Lajers promotional appointment as chief of police which the appellate court struck down. Since Lajer was not validly terminated from public office and, as a matter of fact, was ordered reinstated through a warrant of mandamus, it follows that there was no vacancy in the office of chief of police on January 14, 1960 and there was no office to which Higinio Verra could have been appointed. The discussions in the decision of the respondent judge on whether or not Higinio Vera was validly removed from office are all beside the point. Never having been validly appointed, there was no office from which he was -illegally dismissed. At most, he was a de facto officer during the years when Lajer was litigating his action for reinstatement in the court of first instance and in the court of appeals. And as earlier stated, the certification by the Commissioner of Civil Service that Mr. Verra possessed the qualifications and the eligibility, doubtful though the latter may be, for the position of chief of police could not have made the proceedings. in court moot and academic much less rendered inutile the 1966 decision of the Court of Appeals granting the petition for a writ of mandamus in Lajers favor.

Moreover, the equities of the case do not lean towards respondent Verra Estanislao Lajer had been a member of the Abuyog police force since January 1, 1949. He had passed the patrolman's examination, was promoted to corporal, later to sergeant, and finally to chief of police in his tenth year of service. On the other hand, Higinio Verra was a school teacher with apparently no police experience whatsoever when he was appointed chief of police on January 14, 1960. It is too late in the day now to debate the correctness of the Court of Appeals decision that non- attestation was not sufficient cause for outright removal. The decision has long been final and was implemented in 1966. There is similarly no point in resolving the issue as to who has better qualifications and more nearly appropriate eligibility for the position of chief of police a police sergeant with ten years experience and patrolman's eligibility or a school teacher with a senior teacher's eligibility.

Verra asks if he should be bound by the decision of the Court of Appeals, not having been a party to the case. The issue before the Court of First Instance and the Court of Appeals was whether or not the Mayor, Municipal council, Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally terminated the chief of police. sergeant of police, and six other members of the, police force from their respective offices and whether or lot mandamus may issue to compel their reinstatement. mandamus having issued, any person whether Mr. Higinio Verra or any other appointee to the contested position must give up the office in favor of the officer adjudged by the courts to be entitled to it.

WHEREFORE, the instant petition is hereby granted. The decision of the respondent court in Civil Case No. 3606 is reversed and set aside and the petition for quo warranto with mandamus filed in the court a quo is ordered dismissed.

SO ORDERED.

GAYATAO VS CSC

G.R. No. 93064 June 22, 1992

AGUSTINA G. GAYATAO, petitioner, vs. CIVIL SERVICE COMMISSION and BAYANI I. FERNANDEZ, respondents.

REGALADO, J.:p

This special civil action for certiorari impugns the resolution promulgated on October 5, 1989 in CSC Case No. 418 of respondent Civil Service Commission revoking the appointment of petitioner as Customs Operations Chief of the Export Division at the Ninoy Aquino International Airport and directing the Commissioner of Customs to appoint private respondent in her stead, as well as its resolution of April 10, 1990 denying petitioner motion for reconsideration.

Private respondent Bayani I. Fernandez was holding the position of Customs Operations Chief I (COC) in the Bureau of Customs since March 5, 1984 in a permanent capacity. 1 He was assigned to the aircraft Operations Division. On October 15, 1987, per Customs Personnel Order (CPO) No. C-152-87 issued by Commissioner Salvador M. Mison, he was reassigned as Acting Chief of the Export Division at the Ninoy Aquino International Airport (NAIA) Customhouse. 2

On February 15, 1988, Commission Mison, purportedly acting pursuant to Executive Order No. 127 implementing the reorganization of the Department of Finance, Bureau of Customs, appointed petitioner Agustina G Gayatao, then a Supervising Customs Trade Examiner, to the position of Customs Operations Chief at the NAIA Customhouse, effective March 1, 1988 3 Thereafter, in CPO No. B-27-88 dated March 3, 1988, petitioner was designated as COC of the Export Division at NAIA, while private respondent was designated as Customs Operations Assistant Chief (COAC) of the Aircraft Operations Division, both designations being effective March 1, 1988. 4

Aggrieved by the actions of said commissioner, private respondent filed a letter of protest on May 18,1988 before the Merit System Protection Board of respondent Civil Service Commission (CSC) questioning the appointment of petitioner as COC and his demotion to the position of COAC. In assailing the action of the appointing authority, private respondent alleged in substance that (1) he was unjustifiably demoted since he had been holding the contested position prior to the reorganization; and (2) he is more qualified than herein petitioner. 5

Commenting thereon in an undated 4th Indorsement, the Commissioner of Customs alleged that the aforestated appointment of petitioner is "non-protestable, at having been done pursuant to Executive Order No 127, . . . 6

On October 5, 1989, respondent commission promulgated the challenged resolution mentioned at the start of this opinion, with the following dispositive portion:

WHEREFORE, premises considered, the appointment of appellee Atty. Gayatao as Customs Operations Chief is hereby revoked. Accordingly, the Commissioner, Bureau of Customs is hereby directed to appoint appellant Fernandez in her stead. 7

On October 30, 1987, petitioner filed a request for reconsideration of the questioned resolution, 8 but the same was denied by the CSC in its resolution dated April 10, 1990. 9 Disagreeing with the aforementioned resolutions, petitioner filed the instant petition for certiorari with prayer for preliminary injunction.

Public respondent CSC filed its comment to the petition on August 27, 1990 10 while private respondent Fernandez did likewise on August 23, 1990 11 After some preliminary pleadings and exchanges, on September 25, 1990 the Solicitor General filed a manifestation in lieu of comment, recommending the grant of the petition and the annulment of the questioned resolutions of public respondent.

In our resolution of November 6, 1990, 12 we required respondent CSC to comment on the manifestation in lieu of comment filed by the Solicitor General, which it did on October 15, 1991 13 and subsequently amplified on October 18, 1991 with a supplemental comment .14

On November 12, 1991, we resolved to give due course to the petition, with the parties filing their respective memoranda, 15 the last of which was filed by the Solicitor General on February 12, 1992.

The focal issue raised for resolution in this petition is whether respondent commission committed grave abuse of discretion in revoking the appointment of petitioner and ordering the appointment of private respondent in her place.

Petitioner takes the position that public respondent has no authority to revoke her appointment on the ground that another person is more qualified, for that would constitute an encroachment on the discretion vested solely in the appointing authority. In support of said contention, petitioner cites the case of Central Bank of the Philippines, et al. vs. Civil Service Commission, et al., 16 where we ruled that under the Civil Service Decree (Presidential Decree No. 807), the authority of the CSC is limited to approving or renewing an appointment in the light of the requisites of the law governing the civil service. The CSC has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It will be in excess of its power if it substitutes its will for that of the appointing authority. The CSC not being the "appointing power" in contemplation of law, cannot direct the appointment of a substitute of its choice

We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain petitioner's theory and submissions in this case premised on said doctrinal rules.

The doctrine laid down in he cited case finds no determinant application in the case at bar. A reading of the questioned resolution of respondent commission readily shows that the revocation of the appointment of petitioner was based primarily on its finding that the said appointment was null and void by reason of the fact that it resulted in the demotion of private respondent without lawful cause in violation of the latter's security of tenure. The advertence of the CSC to the fact that private respondent is better qualified than petitioner was merely to lend further support to its stand that the removal of private respondent was unlawful and tainted with bad faith and that his reinstatement to his former position is imperative and justified.

We quote the pertinent portion of said resolution:

After a careful perusal of the records of the case, the Commission finds the appeal meritorious, Records will show that prior to the reorganization, appellant was already holding the position of Customs Operations Chief I since March 1984. His reappointment to the position of Customs Operation Assistant Chief is therefore a clear demotion of rank and position. The Commission finds no sufficient justifiable reason for this demotion The appointing authority cannot entirely disregard the rule on equity of the incumbent and justify demotion in the guise of reorganization, if such demotion will amount to a penalty without justifiable ground or will result in deprivation of due process on the part of the employee concerned. Although the appointing authority is afforded wide latitude in the selection and appointment of employee(s), such exercise is however not absolute. The Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213), ruled:

While it has been held that the right to select and appoint employees is the prerogative of the employer, this may be availed of without liability, provided this is exercised, in the words of Justice Juvenal K. Guerrero, in good faith for the advancement of the employer's interest, and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further that such prerogative(s) are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite.

Finally, records will further show that appellant is more qualified than appellee because aside from being the incumbent Customs Operations Chief prior to the reorganization, he was an "Assistant Custom" Operations Chief since 1977. His experience in the area of Customs Operations are more than sufficient to qualify him for reappointment to the contested position. 17

Clearly, therefore, in the said resolution the CSC is not actually directing the appointment of private respondent but simply ordering his reinstatement to the contested position being the first appointee

thereto. Further, private respondent was already holding said position when he was unlawfully demoted The CSC, after finding that the demotion was patently illegal, is merely restoring private respondent to his former position, just as it must restore other employees similarly affected to their positions before the reorganization. 18

It is within the power of public respondent to order the reinstatement of government employees who have been unlawfully dismissed. The CSC, as the central personnel agency, has the obligation to implement and safeguard the constitutional provisions on security of tenure and due process. In the present case, the issuance by the CSC of the questioned resolutions, for the reasons clearly explained therein, is undubitably in the performance of its constitutional task of protecting and strengthening the civil service.

In the recent case of Aquino vs. Civil Service Commission, et al., 19 wherein similar issues were raised, it was ruled that:

We have consistently applied the above doctrine in many cases with similar factual circumstances, but We see no compelling reason to apply the same in the instant case. In the cases cited above, We ruled that the CSC has no authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the appointing authority. The situation is different, as in the instant case, where the CSC revoked the appointment of the successful protestant, petitioner herein, principally because the right to security of tenure of the prior appointee, private respondent herein, to the contested position had already attached. It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored the appointment of private respondent who was first appointed to the contested position.

We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani I. Fernandez was illegally demoted. As earlier noted, private respondent was holding the position of Customs Operations Chief in a permanent capacity since 1984. His non-reappointment to that position amounts to a removal without cause from an office which has not been abolished nor reorganized.

As we stressed in Dario vs. Mison, et al., and its companion cases, 20 removal from office as a result of reorganization must pass the test of good faith. Upon the effectivity of the 1987 Constitution, any reorganization undertaken by the Government must be guided and circumscribed by the safeguards and provisions of the said Constitution and the statutes' governing reorganization. 21

In the instant case, the guidelines and standards provided in those laws were not observed. The position of private respondent as COC of the Export Division was not abolished with the reorganization of the Bureau of Customs. What happened was that another person, herein petitioner who is lower in rank, was appointed in his stead. Such fact is a clear indication of bad faith which would entitle herein private respondent to reinstatement pursuant to Section 9 of Republic Act No. 6656. 22

As a civil service employee with a permanent appointment, Private respondent cannot be removed, suspended or demoted except for cause" provided by law. Private respondent's appointment to the lower position of COAC is a clear demotion in rank without no valid cause and without being heard thereon. A demotion in office by assigning an employee to a lower position on the same service is tantamount to removal, if no cause is shown for it, more so, if it is not part of any disciplinary action. 23 The observance of the rules on bona fide abolition of public office is essential before terminations and/or demotions from employment in the government service can be made. 24

The argument of petitioner that the questioned resolution of respondent CSC will have the effect of her dismissal without cause from government service, since she is already an appointee to the position which private respondent claims, is devoid of legal support and logical basis.

In the first place, petitioner cannot claim any right to the contested position. No vacancy having legally been created by the illegal dismissal no appointment may be validly made to that position and the new appointee has no right whatsoever to that office. She should be returned to where she came from or to given another equivalent item. 25 No person, no matter how qualified and eligible for a certain position, may he appointed to on office which is not yet vacant. The incumbent must have been lawfully removed or his appointment validly terminated, 26 since an appointment to an office which is not vacant is null and ab initio. 27

The present Constitution does not provide for automatic vacancies; removals "not for cause" contemplated in Section 16, Article XVIII thereof must be those resulting from reorganization and which, to repeat, must pass the test of good faith. 28

We reiterate what we said in the above-cited case of Floreza:

We apply the ruling in Dario vs. Mison and Section 2 of Republic Act 6656 to this position. We hold that Floreza was deprived of his right to security of tenure by his non-appointment to the position of Revenue Service Chief or its new title under the reorganized Bureau of Internal Revenue. It should be remembered that after February 2, 1987, any reorganization undertaken by the government is circumscribed by the provisions and safeguards of the New Constitution. Hence, when Floreza was not reappointed as Revenue Service Chief or as Assistant Commissioner either in the Legal Service, or in the Planning and Research Service, and other persons were reappointed to the positions, he was, in effect dismissed from the service in violation not only of his right to security of tenure but to due process as well.

xxx xxx xxx

Section 2 of Republic Act No. 6655 entitles a victim of removal in violation of the bona fide rule to a reinstatement or reappointment to the position from which he was removed. The fact that there is now an appointee to the position he claims, holding an appointment signed by the President, is of no moment, There was no vacancy in the office to which Jaime M. Masa was appointed and, therefore, his promotion was not valid.

The argument of the Solicitor General that private respondent's assignment as COC of the Export Division at NAIA was only in an acting capacity is unavailing. While it is true that an acting appointment is merely temporary and revocable at the pleasure of the appointing power, 29 this temporary appointment cannot be used by the appointing authority as an argument or justification in order to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. 30

Although it is true that the appointment of private respondent Fernandez as COC is without any particular or fixed station and, generally he may be assigned anywhere as the exigencies of the service may require, 31 nonetheless his reassignment as Acting Chief of the Export Division at NAIA does not make his appointment as Customs Operation Chief I temporary and revocable at the pleasure of the appointing power. He cannot be arbitrarily removed from a particular division without reassigning him to another division nor can he be appointed to a lower position without cause and without notice and hearing The appointing power cannot use the device of an ambiguous designation to go around the security of tenure of a permanent employee. 32

On the foregoing consideration, private respondent must be restored to his former position as Chief of the Export Division at NAIA without prejudice to the power of the Commissioner of Customs to reassign him to any other division as the exigencies of the service may require, provided this is done in good faith for the best interests of the service or for valid cause.

It is also worthy of note that the order for the reinstatement of private respondent is in consonance with our ruling in Dario vs. Mison, ante, that there was lack of good faith in the reorganization of the Bureau of Customs. Apropos to the present case is this trenchant observation therein: "There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple." 33

WHEREFORE, the petition at bar is DISMISSED and the questioned resolutions of respondent Civil Service Commission are hereby AFFIRMED.

SO ORDERED.

GARCES VS CA

G.R. No. 114795 July 17, 1996

LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, respondents.

R E S O L U T I O N

FRANCISCO, J.:p

Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA), as well as its resolution, which affirmed the decision of the Regional Trial Court 3 (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial Election Supervisor and an incumbent Election Registrar.

The undisputed facts are as follows:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27, 1986. She was to replace respondent Election Registrar Claudio Concepcion who, in turn, was transferred to Liloy, Zamboanga del Norte. 4 Correspondingly approved by the Civil Service Commission, 5 both appointments were to take effect upon assumption of office. Concepcion, however, refused to transfer post as he did not request for it. 6 Garces, on the other hand, was directed by the Office of Assistant Director for Operations to assume the Gutalac post. 7 But she was not able to do so because of a Memorandum issued by respondent Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant. 8

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department, with an enclosed check to cover for the expenses on construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga del Norte" which Garces interpreted to mean as superseding the deferment order. 9 Meanwhile, since respondent Concepcion continued occupying the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy. 10

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory injunction and damages against Empeynado 11 and Concepcion, among others. Meantime, the COMELEC en banc through a Resolution dated June 3, 1988, resolved to recognize

respondent Concepcion as the Election Registrar of Gutalac, 12 and ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. 13 In view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the said COMELEC Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the proper remedy, 14 and (2) that the "cases" or "matters" referred under the constitution pertain only to those involving the conduct of elections. On appeal, respondent CA affirmed the RTC's dismissal of the case. Hence, this petition

The issues raised are purely legal. First, is petitioner's action for mandamus proper? And, second, is this case cognizable by the RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of her appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional Constitution. 15 On the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to Liloy.

Article III Section 2 of the Provisional Constitution provides:

All elective and appointive officials and employees under the 1973 Constitution shall continue in the office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. (Emphasis supplied).

The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution. 16 The transition period from the old to the new Constitution envisioned an "automatic" vacancy; 17 hence the government is not hard put to prove anything plainly and simply because the Constitution allows it. 18 Mere appointment and qualification of the successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed prior to the issuance of Concepcion's transfer order, enumerates five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution, to wit:

1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.

Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior appointment. 19 If the transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause 20 contrary to the

fundamental guarantee on non-removal except for cause. 21 Concepcion's transfer thus becomes legally infirm and without effect for he was not validly terminated. His appointment to the Liloy post, in fact, was incomplete because he did not accept it. Acceptance, it must be emphasized, it is indispensable to complete an appointment. 22 Corollarily, Concepcion's post in Gutalac never became vacant. It is a basic precept in the law of public officers that "no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. 23 There can be no appointment to a non-vacant position. The incumbent must first be legally removed, or his appointment validly terminated before one could be validly installed to succeed him. Further, Garces' appointment was ordered to be deferred by the COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her appointment to Gutalac was even cancelled by the COMELEC en banc.

These factors negate Garces' claim for a well-defined, clear, certain legal right to the Gutalac post. On the contrary, her right to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioner's right is founded clearly in law and not when it is doubtful. 24

It will not issue to give him something to which he is not clearly and conclusively entitled. 25

Considering that Concepcion continuously occupies the disputed position and exercises the corresponding functions therefor, the proper remedy should have been quo warranto and not mandamus. 26 Quo warranto tests the title to one's office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles. 27

Garces' heavy reliance with the 1964 Tulawie 28 case is misplaced for material and different factual considerations. Unlike in this case, the disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie's appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain. Tulawie's petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested office. In this case, there was no vacancy in the Gutalac post and petitioner's appointment to which she could base her claim was revoked making her claim uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado 29 contending that this is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought to the supreme court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the COMELEC's resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., it

must pertain to an election dispute. The settled rule is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers 30

involving "elective regional, provincial, and city officials." 31 In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an agency. 32 The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal, person or body exercising judicial or quasi-judicialfunctions." 33

WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the proper action with the appropriate body.

NEXT IN RANK RULE

PANIS VS CSC

G.R. No. 102948 February 2, 1994

JAIME T. PANIS, petitioner, vs. CIVIL SERVICE COMMISSION and BELLA V. VELOSO, respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of Article IX (A) of the Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and Resolution No. 91-1100 dated September 24, 1991, of the Civil Service Commission. The first Resolution dismissed petitioner's appeal from the decision of the Regional Office of the Civil Service Commission, and at the same time, upheld the appointment of respondent Bella V. Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center (CCMC). The second Resolution denied the motion for reconsideration of the decision.

I.

The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local government of Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while private respondent was Administrative Officer of the City Health Department detailed at the said hospital.

On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of Assistant Chief of Hospital for Administration of CCMC. Petitioner, a candidate for the said position, promptly protested the appointment before the Regional Office of the Civil Service Commission (CSC). The CSC Regional Office, however, indorsed the matter to the Office of the City Mayor, which in turn referred it to the Office of the City Attorney.

In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed petitioner's protest and upheld the appointment of private respondent. This dismissal was affirmed by the CSC Regional Office and later on appeal, by respondent CSC. Hence, the present petition.

II.

Petitioner contends that the appointment of private respondent was made in violation of law, existing civil service rules and established jurisprudence because (1) the position of Assistant Chief of Hospital for Administration was not legally created; (2) assuming that it was, there was no qualification standard nor valid screening procedure; and (3) the seniority and next-in-rank rules were disregarded.

III.

The petition is not impressed with merit.

Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the charter of the Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said institution. The hospital's name was changed to CCMC, and the departments and offices therein were reorganized. The Office of Hospital Administrator was created and granted such powers as were deemed in line with the objectives of the Ordinance.

On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital Administrator. This appointment was, however, not acted upon by the CSC but returned to the appointing authority on October 21, 1987 for lack of the screening requirement. On even date, the City Mayor withdrew private respondent's appointment. The title of Hospital Administrator was later found to be a misnomer and thus was properly classified by the Joint Commission on Local Government Personnel Administration as one of Assistant Chief of Hospital for Administration. This classification was subsequently approved by the Department of Budget Management.

The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, but the designation thereof merely corrected to reflect the proper classification of the position under existing rules (Rollo, pp. 78-80). The Office of Assistant Chief of Hospital for Administration therefore was created and existed in accordance with law.

As a result of the reclassification, candidates to the position, among whom were petitioner and private respondent, were notified by the Personnel Selection Board (Board) of the screening scheduled on October 22, 1987. The notice sent petitioner at 9:30 A.M. may have been "too close for comfort to the 10:00 schedule," but the screening was actually reset to the following day, October 23, 1987. Petitioner however never appeared before the Board. Neither did he appear, despite due notice, at the final selection process on November 5, 1987.

The fact that private respondent was actually screened and interviewed by the Board does not mean that her appointment was a fait accompli. The screening was just a stage in the appointment process.

Private respondent and petitioner are college degree holders with three units in Public Administration and three years experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum qualifications for the position. The determination, however, who among the qualified candidates should be preferred belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent.

The argument that petitioner should have been the one appointed because he was next in rank to the contested position and that he had been with CCMC since 1961 as compared to private respondent, who joined the hospital in 1986 and only on detail, cannot be upheld.

It is ironic that petitioner is personally interested in the subject position, the creation and validity of which he himself originally questioned. Be that as it may, the "next in rank" rule specifically applies only in cases of promotion (Medenilla v. Civil Service Commission, 194 SCRA 278 [1991]; Pineda v. Claudio, 28 SCRA 34 [1969]). The instant controversy, however, involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of

present employees in the government service, by reinstatement, by reemployment of those separated from the service, and appointment of outsiders who have appropriate civil service eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec. 21 (5); Español v. Civil Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil Service Commission, supra., at 289-290).

It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she was an outsider, the law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service eligibility.

Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall be considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Español v. Civil Service Commission, supra; Barrozo v. Civil Service Commission, 198 SCRA 487 [1991]). In other words, one who is "next in rank" to a vacancy is given preferential consideration for promotion to the vacant position, but it does nor necessarily follow that he alone and no one else can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant position (Barrozo v. Civil Service Commission, supra; Santiago, Jr. v. Civil Service Commission, 178 SCRA 733 [1989]).

An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing authority (Medenilla v. Civil Service Commission, supra, at 291; Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]). After all, the appointing authority is the officer primarily responsible for the administration of the office, and is likewise in the best position to determine who among the qualified candidates can efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA 498 [1969]); Reyes v. Abeleda, 22 SCRA 825 [1968]). Indeed, whom to appoint among those qualified is an administrative question involving considerations of wisdom for the best interest of the service which only the appointing authority can decide (Simpao v. Civil Service Commission, 191 SCRA 396 [1990]; Luego v. Civil Service Commission, 143 SCRA 327 [1986]).

It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the level of performance of the said hospital. She accomplished this mission by institutionalizing changes in the management and financial reporting system of the hospital such that its income doubled in less than two years since her detail. Private respondent's competence and her remarkable achievement are things the appointing authority took notice of and which served as basis for her appointment to the contested position.

Finally, the moral character and honesty of private respondent are issues that should be threshed out in an appropriate action before the proper forum. As it stands, private respondent is presumed innocent and her acts done in good faith, until proven otherwise.

WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court resolved to DISMISS the petition for lack of merit.

SO ORDERED.

\

DISCRETIONARY FUNCTION

LUEGO VS CSC

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

CRUZ, J.:

Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be briefly narrated as follows:

The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and the private respondent's title.

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violation of the Constitution. 5

While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary.

The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not the

appointment it sell And what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws.

As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowered to determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the nature or kind of the appointment to be extended. 8

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

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

It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then considered part of the appointing process, which was held complete only after such confirmation. 11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not the person appointed meets all the required conditions laid down by the law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:

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

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate eligibility. 13

There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs.

SO ORDERED.

ANZALDO VS CLAVE

G.R. No. L-54597 December 15, 1982

FELICIDAD ANZALDO, petitioner, vs. JACOBO C. CLAVE as Chairman of the Civil Service Commission and as Presidential Executive Assistant; JOSE A. R. MELO, as Commissioner of the Civil Service Commission, and EULALIA L. VENZON, respondents.

AQUINO, J.:

This is a controversy over the position of Science Research Supervisor II, whose occupant heads the Medical Research Department in the Biological Research Center of the National Institute of Science and Technology (NIST).

Doctor Felicidad Estores-Anzaldo 55, seeks to annul the decision of Presidential Executive Assistant Jacobo C. Clave dated March 20, 1980, revoking her appointment dated January 5, 1978 as Science Research Supervisor II and directing the appointment to that position of Doctor Eulalia L. Venzon, 48.

The contested position became vacant in 1974 when its incumbent, Doctor Quintin Kintanar, became Director of the Biological Research Center. Doctor Kintanar recommended that Doctor Venzon be appointed to that position. Doctor Anzaldo protested against that recommendation. The NIST Reorganization Committee found her protest to be valid and meritorious (p. 34, Rollo). Because of that impasse, which the NIST Commissioner did not resolve, the position was not filled up.

At the time the vacancy occurred, or on June 30, 1974, both Doctors Anzaldo and Venzon were holding similar positions in the Medical Research Department: that of Scientist Research Associate IV with an annual compensation of P12,013 per annum. Both were next-in-rank to the vacant position.

Later, Doctor Pedro G. Afable, Vice-Chairman, became the Officer-in-Charge of the NIST. Effective January 5, 1978, he appointed Doctor Anzaldo to the contested position with compensation at P18,384 per annum. The appointment was approved by the Civil Service Commission.

Doctor Afable, in his letter dated January 20, 1978, explained that the appointment was made after a thorough study and screening of the qualifications of Doctors Anzaldo and Venzon and upon the recommendation of the NIST Staff Evaluation Committee that gave 88 points to Doctor Anzaldo and 61 points to Doctor Venzon (p. 78, Rollo).

Doctor Venzon in a letter dated January 23, 1978, addressed to Jacobo C. Clave, appealed to the Office of the President of the Philippines (pp. 139-40). The appeal was forwarded to the NIST Anzaldo to the contested position (p. 63, Rollo). The appeal-protest was later sent to the Civil Service Commission.

Chairman Clave of the Civil Service Commission and Commissioner Jose A. R. Melo recommended in Resolution No. 1178 dated August 23, 1979 that Doctor Venzon be appointed to the contested position, a recommendation which is in conflict with the 1978 appointment of Doctor Anzaldo which was duly attested and approved by the Civil Service Commission (pp. 30 and 48, Rollo).

The resolution was made pursuant to section 19(6) of the Civil Service Decree of the Philippines, Presidential Decree No. 807 (which took effect on October 6, 1975) and which provides that "before deciding a contested appointment, the Office of the President shall consult the Civil Service Commission."

After the denial of her motion for the reconsideration of that resolution, or on January 5, 1980, Doctor Anzaldo appealed to the Office of the President of the Philippines. As stated earlier, Presidential Executive Assistant Clave (who was concurrently Chairman of the Civil Service Commission) in his decision of March 20, 1980 revoked Doctor Anzaldo's appointment and ruled that, "as recommended by the Civil Service Commission" (meaning Chairman Clave himself and Commissioner Melo), Doctor Venzon should be appointed to the contested position but that Doctor Anzaldo's appointment to the said position should be considered "valid and effective during the pendency" of Doctor Venzon's protest (p. 36, Rollo).

In a resolution dated August 14, 1980, Presidential Executive Assistant Clave denied Doctor Anzaldo's motion for reconsideration. On August 25, 1980, she filed in this Court the instant special civil action of certiorari.

What is manifestly anomalous and questionable about that decision of Presidential Executive Assistant Clave is that it is an implementation of Resolution No. 1178 dated August 23, 1979 signed by Jacobo C. Clave, as Chairman of the Civil Service Commission and concurred in by Commissioner Jose A. Melo.

In that resolution, Commissioner Clave and Melo, acting for the Civil Service Commission, recommended that Doctor Venzon be appointed Science Research Supervisor II in place of Doctor Anzaldo.

When Presidential Executive Assistant Clave said in his decision that he was "inclined to concur in the recommendation of the Civil Service Commission", what he meant was that he was concurring with Chairman Clave's recommendation: he was concurring with himself (p. 35, Rollo).

It is evident that Doctor Anzaldo was denied due process of law when Presidential Executive Assistant Clave concurred with the recommendation of Chairman Clave of the Civil Service Commission. The case is analogous to Zambales Chromite Mining Co. vs. Court of Appeals, L-49711, November 7, 1979, 94 SCRA 261, where it was held that the decision of Secretary of Agriculture and Natural Resources Benjamin M. Gozon, affirming his own decision in a mining case as Director of Mines was void because it was rendered with grave abuse of discretion and was a mockery of administrative justice.

Due process of law means fundamental fairness. It is not fair to Doctor Anzaldo that Presidential Executive Assistant Clave should decide whether his own recommendation as Chairman of the Civil Service Commission, as to who between Doctor Anzaldo and Doctor Venzon should be appointed Science Research Supervisor II, should be adopted by the President of the Philippines.

Common sense and propriety dictate that the commissioner in the Civil Service Commission, who should be consulted by the Office of the President, should be a person different from the person in the Office of the President who would decide the appeal of the protestant in a contested appointment.

In this case, the person who acted for the Office of the President is the same person in the Civil Service Commission who was consulted by the Office of the President: Jacobo C. Clave. The Civil Service Decree could not have contemplated that absurd situation for, as held in the Zambales Chromite case, that would not be fair to the appellant.

We hold that respondent Clave committed a grave abuse of discretion in deciding the appeal in favor of Doctor Venzon. The appointing authority, Doctor Afable, acted in accordance with law and properly exercised his discretion in appointing Doctor Anzaldo to the contested position.

Doctor Anzaldo finished the pharmacy course in 1950 in the College of Pharmacy, University of the Philippines. She obtained from the Centro Escolar University the degree of Master of Science in Pharmacy in 1962 and in 1965 the degree of Doctor of Pharmacy.

Aside from her civil service eligibility as a pharmacist, she is a registered medical technologist and supervisor (unassembled).

She started working in the NIST in 1954 and has served in that agency for about twenty-eight (28) years now. As already stated, in January, 1978, she was appointed to the contested Position of Science Research Supervisor II. Her present salary as Science Research Supervisor II, now known as Senior Science Research Specialist, is P 30,624 per annum after she was given a merit increase by Doctor Kintanar, effective July 1, 1981 (p. 259, Rollo).

On the other hand, Doctor Venzon finished the medical course in the University of Santo Tomas in 1957. She started working in the NIST in 1960. She has been working in that agency for more than twenty-one (21) years. Doctor Anzaldo is senior to her in point of service.

Considering that Doctor Anzaldo has competently and satisfactorily discharged the duties of the contested position for more than four (4) years now and that she is qualified for that position, her appointment should be upheld. Doctor Venzon's protest should be dismissed.

WHEREFORE, the decision of respondent Clave dated March 20, 1980 is set aside, and petitioner Anzaldo's promotional appointment to the contested position is declared valid. No costs.

SO ORDERED.

MERAM VS EDRALIN

G.R. No. 71228 September 24, 1987

ERLINDA P. MERAM, petitioner, vs. FILIPINA V. EDRALIN, THE MINISTER OF NATURAL RESOURCES AND THE PRESIDENTIAL ASSISTANT FOR LEGAL AFFAIRS, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari which seeks to set aside the decision of the Presidential Assistant for Legal Affairs, permanently enjoining the Minister of Natural Resources and the Director of the Bureau of Forest Development (BFD) from enforcing and implementing the decisions of the Merit Systems Board and the resolutions of the Civil Service Commission which ordered the appointment of the petitioner to the contested position of Administrative Officer V in the Bureau of Forest Development.

On July 29, 1982, the private respondent Filipino V. Edralin, who was a training officer of the Bureau of Forest Development (BFD) was proposed for appointment to the position of Administrative Officer V, R-73, Administrative Division of the BFD. Petitioner herein and Mr. Hermocio M. Agravio who hold the positions of Administrative Officer III,R-70 and Supply Officer V, R-70 respectively, filed their protests against the proposal.

On the same date, the Director of the BFD sent a memorandum to the respondent Minister stating that in the course of the deliberation of the BFD Promotion Board, the latter found out that there are four BFD Personnel in the Central Office who are considered "next-in-rank" to the position of Administrative Officer V namely:

Erlinda P. Meram, Administrative Officer Ill, Range 70, assigned as Chief of the Internal Control Staff.

Hermecio M. Agravio, Supply Officer V, Range 70, Chief of the Property Section, designated Asst. Chief of the Administrative Division from October 8, 1981 to July 20, 1982.

Atty. Dominador Malong, Legal Officer, Range 69, assigned in the Legal Division.

Atty. Salome T. Cansino, Trial Attorney Range 69, assigned in the Legal Division. (Rollo, pp. 30-31)

In his memorandum, the Director also pointed out that the Board found that Mrs. Filipina V. Edralin, Training Officer, Range 60, assigned in the Training Center was not next-in-rank.

On August 10, 1982, the Civil Service Commission forwarded to the respondent Minister the protests of the petitioner and Agravio for appropriate action.

On August 12, 1982, the respondent Minister forwarded the permanent appointment of respondent Edralin to take effect on August 17, 1982, as Administrative Officer V to the Commission for appropriate action.

In his letter, the Minister explained that he assessed the recommendation of the Promotions Board and considered also other aspects which are vital to the dynamism of the service; and upon seeing that respondent Edralin is eminently qualified for the position, the person on whom he can repose his trust and confidence, and who possesses the necessary integrity, knowledgeability and sound judgment, he decided to appoint her to the said position for the best interest of the service.

In due course, the appointment was approved by the Commission "subject to the final outcome of the protests against the appointment by Erlinda Meram and H. Agravio."

On September 1, 1982, the respondent Minister rendered a decision, embodied in two separate letters, dismissing the protests. In his letter to the petitioner which was received by the latter on September 10, 1982, the Minister assured her "that when another opportunity comes, and I have had a chance to better appreciate your qualities and capabilities, then I would certainly consider you for the appointment to a more senior position. "

Petitioner and Agravio appealed to the Merit Systems Board (MSB) pursuant to paragraph 2, Section 5 of Presidential Decree (P.D.) No. 1409.

On January 13, 1983, the Merit Systems Board promulgated a decision in favor of Hermecio M. Agravio, revoking the previous approval of the appointment of respondent Edralin and directing the Minister to appoint, in her stead, Agravio to the contested position. In its decision, the MSB ruled:

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Based on the foregoing qualifications of the contestants, this Board finds that all parties meet the eligibility requirement. While Mrs. Edralin and Mrs. Meram are holders of bachelor's degree supplemented with at least 12 units in management and/or public administration, Mr. Agravio, although a third year in Commerce, has relevant in-service trainings/seminars which would sufficiently offset his one year deficiency in college work and the required 12 units in management/public administration (CSC Res. No. 682, dated July 20, 1977). Thus, all meet the education requirement for the contested position. As to the required 5 years experience, Mr. Agravio has been (an) Administrative Officer 11 for four years of progressively responsible experience in all phases of administrative functions. In the same manner, Meram bas been a Disbursinng Officer for more than one year, a Budget Examiner for six months, Cashier IV for five years, and an Administrative Officer Ill for more than three years or a total of about nine years and six months. On the other hand, the relevant experience of Edralin consist of three years in Training Assistant and about one year as Training Officer, which experiences as Trainor, although may be considered, are however less than the required five years of progressively responsible experience. However, Edralin's deficiency in the required experience may be offset by her relevant trainings and academic units earned in Master of Public Administration.

From the foregoing, it cannot be said that Mr. Agravio does not qualify for the position, or that Mrs. Meram's work experience are not suitable and relevant, and her education not appropriate to the contested position. Moreover, the contested position is not confidential in nature but rather, belongs to the second level in the career service so that trust and confidence are not the decisive factors in fining the position.

The Merit Promotion Plan established by the Bureau of Forest Development shows that the positions considered next-in-rank to the contested position of Administrative Officer V

(R-73) are: Administrative Officer III (R-70), Supply Officer IV (R-70), Senior Legal Officer (R-69). Mrs. Meram holds the position of Administrative Officer III, and Mr. Agravio, Supply Officer IV. Mrs. Edralin holds the position of Training Officer (R-60) which is not listed as next-in-rank. Such being the case, Mrs. Edralin is not, while Mrs. Meram and Mr. Agravio are next-in-rank employees to the contested position. Hence, the latter two should have been considered for the position of Administrative Officer V.

xxx xxx xxx

In terms of education, Mrs. Meram is a holder of bachelor's degree with 12 units in Master in Business Administration and has 9 years and 6 months relevant experience with 12 relevant trainings completed. Mr. Agravio, who is a third year Commerce student, however, has 13 years of relevant experience to his credit and 23 relevant training completed. Moreover, for a period of 9 months, Mr. Agravio was designated Officer-in-Charge, Administrative Division, pursuant to MNR Special Order No. 359, series of 1981, and there is no showing that he failed to discharge efficiently the duties and responsibilities of the position. Thus, Mr. Agravio is considered more competent and qualified than Meram (Rollo, pp. 50-51)

Both the petitioner and respondent Edralin filed motions for reconsideration. On May 16, 1983, the MSB promulgated another decision modifying the earlier one and appointed the petitioner, after finding that Agravio's designation as Assistant Officer-in-Charge was revoked because he had been ineffective in said position.

Respondent Edralin appealed to the Civil Service Commission. On October 5, 1983, the Commission dismissed the appeal and on May 3, 1984, it denied the respondent's motion for reconsideration.

On May 18, 1984, respondent Edralin filed a letter-petition with the Office of the President invoking Section 19(6) of P.D. No. 807. In her petition, Edralin alleged that jurisdiction in promotional contests is lodged with the Ministry head and appeal by the aggrieved party from decisions of said Ministry head should be taken to the Office of the President. Therefore, the Merit System Board and the Civil Service Commission had no jurisdiction to act on petitioner's appeal.

Petitioner, on the other hand, filed a motion for execution of the Commission's decision.

On June 14, 1984, the Confidential Legal Assistant of the Office of the Presidential Assistant for Legal Affairs directed the Commission to forward within fifteen (15) days from receipt thereof, the entire records of the case in view of Edralin's appeal

On July 19, 1984, the Commission rejected the order of the Office of the President, stating that under Section 8, P.D. No. 1409, decisions of the Commission are subject to review only by the courts.

On October 9, 1984, the Minister of Natural Resources issued a Memorandum to the BFD Director instructing him to enforce and implement the order of the Commission for having become final and executory.

On October 15, 1984, the BFD Director issued the appointment of Administrative Officer V to the petitioner effective as of that date.

On February 20, 1985, Confidential Legal Assistant Sabio issued an order directing the MNR to transmit all relevant records of the case.

Respondent Edralin wrote another letter to the President of the Philippines. It seems that this letter was taken cognizance of by then President Marcos because on toPof such letter appeared a note in his purported handwriting which reads:

9 March 1985

Justice Lazaro,

Tell Dir. Cortes to suspend everything pending study by the Office of the President. Prepare decision on appeal for reconsideration.

(Sgd.) Illegible

(Rollo, p. 75)

In connection with the above note, Presidential Assistant for Legal Affairs Lazaro furnished a copy of Edralin's letter with the President's marginal note to Director Cortes of the BFD.

On March 19, 1985, the Director of the BFD issued a memorandum informing Lazaro that the matters which the President was directing him to suspend are already fait accompli and that, therefore, while he was wining to comply with the Presidential instructions, the implementation of his compliance had become legally untenable.

This nothwithstanding, on May 27, 1985, Lazaro rendered the questioned decision, the dispositive portion of which provides:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the decision of the Minister of Natural Resources embodied in two separate letters, both dated September 1, 1982, dismissing the protests of Hermecio M. Agravio and Erlinda P. Meram, is hereby AFFIRMED and the appeals therefrom of said protestants are hereby DISMISSED FOR LACK OF MERIT. The Minister of Natural Resources and the Director of the Bureau of Forest Development are hereby ENJOINED PERMANENTLY from carrying out, complying with and/or enforcing in any manner whatsoever, (1) the decisions dated January 13, 1983, and May 16, 1983 of the Merit Systems Board in MSB Case No. 813 and (2) Resolutions Nos. 83-427 and 84-138, dated October 5, 1983, and May 3, 1984, respectively, of the Civil Service Commission in CSC Case No. 84. (Rollo, p. 106)

Hence, this petition.

The principal issue presented in this case is whether or not the Office of the President acted correctly in taking cognizance of respondent's letter-petition, and passing upon the same, and thereafter, setting aside the decisions of the Merit Systems Board and the Civil Service Commission.

P.D. No. 1409, Section 5(2) provides:

Sec. 5. Powers and Functions of the Board. — The Board shall have the following functions, among others:

xxx xxx xxx

(2) Hear and decide cases brought before it by officers and employees who feel aggrieved by the determination of appointing authorities involving appointment, promotion, transfer, detail reassignment and other personnel actions, as well as

complaints against any officers in the government arising from abuses arising from personnel actions of these officers or from violations of the merit system."

In connection with this power of the MSB, Section 8 of this decree also provides:

Sec. 8. RelationshiPwith the Civil Service Commission. — Decisions of the Board involving the removal of officers and employees from the service shall be subject to automatic review by the Commission. The Commission shall likewise hear and decide appeals from other decisions of the Board, provided that the decisions of the Commission shall be subject to review only by the Courts.

The petitioner contends that by virtue of the above-quoted decree which was promulgated on June 8, 1978, the MSB and the Commission had validly acquired jurisdiction over her formal protest to the exclusion of all other officials, boards or offices and that, therefore, the respondent Presidential Assistant for Legal Affairs gravely abused his discretion when he disregarded and declared as nun and void the decisions of the MSB and the resolutions of the Commission which had already become final and executory, and in fact, had already been executed, enforced and implemented.

On the other hand, the Solicitor-General contends that P.D. No. 807 vests exclusive appellate jurisdiction upon the Office of the President in cases of appeal by a qualified next-in-rank employee from decisions of ministry (department) heads arising from appointments in three (3) specific cases. One of them is when said employee is contesting the appointment of one who is not next-in-rank. Therefore, the petitioner's protest should have been elevated to the Office of the President and not to the Commission, much less to the Merit Systems Board.

P.D. No. 807 was promulgated on October 6, 1975, Section 19 (6) of this decree provides:

Sec. 19 (6) A qualified next-in-rank employee shall have the right to appeal initially to the department head and finally to the Office of the President an appointment made (1) in favor of another next-in-rank employee who is not qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who is appointed by transfer and not next-in-rank, or by reinstatement, or by original appointment if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment: Provided, That final appeal shall be to the department head concerned if the appointment is issued to a qualified next-in-rank employee. Before deciding a contested appointment, the Office of the President shall consult the Civil Service Commission. ... .

There is nothing in the above-quoted provision which connotes exclusivity of jurisdiction in the Office of the President to take cognizance of the specific cases cited above. Furthermore, even if it were so, with the promulgation of P.D. No.1409, this power of review by the Office of the President was not only divested of its exclusivity but was, in fact, repealed altogether. The petitioner, therefore, correctly filed her protest with the MSB in accordance with P.D. No. 1409. Moreover, respondent Edralin is now estopped from questioning the orders of the MSB and the Commission since she submitted to the jurisdiction of these two bodies by filing for reconsideration with the MSB and upon denial of the same, by appealing to the Commission.

In the leading case of Tijam v. Sibonghanoy (23 SCRA 29), we ruled:

While petitioners could have prevented the trial court from exercising jurisdiction over the case by seasonably taking exception thereto, they instead invoked the very same jurisdiction by filing an answer and seeking affirmative relief from it. What is more, they participated in the trial of the case by cross-examining respondent Planas. Upon this

premise, petitioners cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court to which they had submitted themselves voluntarily.

This ruling was reiterated in Philippine National Bank v. Intermediate Appellate Court (143 SCRA 299).

As stated earlier, both the MSB and the Commission had jurisdiction to pass upon the petitioner's protest with or without the application of the principle of estoppel. But more important, however, is the fact that in the decision of the MSB on January 13, 1983, the said board found that respondent Edralin is not an employee who is "next-in-rank" to the vacated position, and although there is no mandatory nor peremptory requirement that persons next-in-rank are entitled to preference in appointments (see Taduran v. Commissioner of Civil Service, 131 SCRA 66), the very purpose of the civil service law dictates that persons who are qualified and next-in-rank should be given preferential consideration when filling uPa vacated position through promotion.

In Samson v. Court of Appeals (145 SCRA 654, 658-659) we ruled:

xxx xxx xxx

... As may be noted, the general purpose of the Civil Service Law (Republic Act No. 2260) is to "insure and promote the general mandate requiring appointments only according to merit and fitness, and to provide within the public service a progressive system of personal administration to insure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines." (Section 2, R. A. 2260).

The principles governing the integrity of the civil service are of universal validity. As stated in the case of Hanley v. Murphy (255 P. 2d, 1, 4):

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... The civil service system rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. (Barry v. Jackson, 30 Cal. App. 165, 169, 157 P. 828) To that end the charter establishes a classified civil service system, with exclusive power in the civil service commission to provide qualified personnel, for the various municipal departments and to classify or reclassify positions according to prescribed duties ...

Furthermore, civil service laws are not enacted to penalize anyone. They are designed to eradicate the system of appointment to public office based on political considerations and to eliminate as far as practicable the element of partisanshiPand personal favoritism in making appointments. These laws intend to establish a merit system of fitness and efficiency as the basis of appointment; to secure more competent employees, and thereby promote better government. (See Gervais v. New Orleans Police Department, 77 So 2d, 393; Civil Service Board of City of Phoenix v. Warren, 244 P2d 1157 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N. W. 2d 281, 284)

In the case at bar, the BFD personnel who are considered next-in-rank to the vacated position were Identified. Respondent Edralin was not one of them. In fact, she was nine or ten salary ranges below the next-in-rank personnel. Subsequently, the MSB made the same finding in its decision. Evidently, therefore, the foremost consideration why respondent's appointment was ordered by the Office of the President notwithstanding the fact that petitioner was more qualified and that she was next-in-rank was because of her petition to the President in the form of a letter rather than an appeal and which started by introducing herself as "Filipina Villeses-Edralin, wife of Efren E. Edralin of Sarrat, Ilocos Norte." The clear intent of her letter-petition was not to appeal in accordance with P.D. No. 807 but to elicit some kind of favorable response from the President based on considerations of blood ties, influence, or ethnic and regional affiliations. To a certain extent she succeeded but this Court must strike down the practice of

political, ethnic, religious, or blood ties being used to get choice appointments for it goes against the very purpose behind the establishment of the civil service in our country. As earlier stated, appointments under the civil service law should be based on merit and fitness and should never depend on how intimate a friend or how closely related an appointee is to the powers that be. And granting that the respondent possesses the qualifications required for the contested position, it cannot be denied that the petitioner equally possesses the same qualifications, if not in greater degree, and more important, she is next-in-rank to the vacated position. Therefore, she deserves to be appointed to the disputed item.

WHEREFORE, the petition is hereby GRANTED. The decision of the Presidential Assistant for Legal Affairs dated May 27, 1985 is ANNULLED and SET ASIDE. The decision of the Merit Systems Board dated May 16, 1983 and the resolutions of the Civil Service Commission which dismissed respondent's appeal and motion for reconsideration are hereby REINSTATED and made immediately EXECUTORY. No extension to file a motion for reconsideration will be granted.

SO ORDERED.

JUDICIAL REVIEW

TANADA VS PHILIPPINE ATOMIC ENERGY COMMISSION

G.R. No. L-68474 February 11, 1986

NUCLEAR FREE PHILIPPINE COALITION, ET AL., petitioners, vs. NATIONAL POWER CORPORATION, ET AL., respondents.

G.R. No. 70632 February 11, 1986

LORENZO M. TAÑADA, ET AL., petitioners, vs. PHILIPPINE ATOMIC ENERGY COMMISSION, ET AL., respondents.

R E S O L U T I O N

PLANA, J.:

I. In G.R. No. 70632, (1) petitioners question the competence of respondent PAEC Commissioners to pass judgment on the safety of the Philippine Nuclear Power Plant-1 PNPP-1 in PAEC Licensing Proceedings No. 1-77 without however seeking their ouster from office, although "proven competence" is one of the qualifications prescribed by law for PAEC Commissioners. (2) Petitioners also assail the validity of the motion (application) filed by the National Power Corporation (NPC) for the conversion of its construction permit into an operating license for PNPP-1 on the principal ground that it contained no information regarding the financial qualifications of NPC, its source of nuclear fuel, and insurance coverage for nuclear damage. (3) Petitioners finally charge respondent PAEC Commissioners with bias and prejudgment.

1. The first issue must be resolved against the petitioners. Where the validity of an appointment is not challenged in an appropriate proceeding, the question of competence is not within the field of judicial inquiry. If not considered a qualification the absence of which would vitiate the appointment, competence is a matter of judgment that is addressed solely to the appointing power.

2. As regards the legal sufficiency of the NPC motion for conversion, petitioners contend that the deficiencies they have indicated are jurisdictional infirmities which cannot be cured. The Court believes

however that said deficiencies may be remedied and supplied in the course of the hearing before PAEC. For this purpose, respondent-applicant NPC may submit pertinent testimonies and documents when the PAEC hearing is re-opened, subject to controversion and counterproof of herein petitioners.

3. There is merit in the charge of bias and prejudgment. The PAEC pamphlets- particularly Annexes "JJ", "KK" and "LL" of the petition (G.R. 70632)-clearly indicate the pre-judgment that PNPP-1 is safe.

Exhibit "JJ" is an official PAEC 1985 pamphlet entitled "The Philippine Nuclear Power Plant-l." It gives an overview specifically of PNPP-1, lauds the safety of nuclear power, and concludes with a statement of the benefits to be derived when the PNPP-1 start operation.

. . .When the PNPP-1 starts operating, it will generate a power of 620 megawatts enough to supply 15 percent of the electricity needs in Luzon. This is estimated to result in savings of US $ 160 million a year, representing the amount of oil displaced.

Aside from being a reliable source of electricity, nuclear power has an excellect safety record and has been found to result in lower occupational and public risks than fossil fired (coal or oil) stations. (p. 6. Emphasis supplied.)

The second pamphlet (Exh. "KK") is entitled "NUCLEAR POWER-SAFE CLEAN ECONOMICAL AND AVAILABLE." On the surface, it merely propagates the use of nuclear power in general. But its numerous specific references to the PNPP-1 "which will be operational in 1985." and its advantages give credence to the charge that Exhibit "KK" was in reality designed to project PNPP-1 as safe, among other

When Exhibit "KK" was published, PNPP-1 was the only nuclear plant under construction in the Philippines. It is the Philippine nuclear plant specifically mentioned therein that was to be operational in 1985. Therefore, when the pamphlet states that nuclear power is working now in other countries and "it should work for us too" because it is "safe" and economical", it is logical to conclude that the reference is to no other than the nuclear power to be generated at the PNPP-1

Also worth quoting is the following passage in Exhibit "KK" which sweepingly vouch safes all nuclear power plants, including the PNPP-1:

No member of the public has ever been injured during the last 25 years that commercial nuclear reactors have been generating electricity. As is to be expected in any complex system as nuclear power plants, there have been failure of equipment and human errors. However in every instance, the safety equipment designed into the nuclear reactor self terminated the accident without injury to the operators or the public. The Three Mile Island Incident, serious as it was, did not result in the loss of life nor did it result in the exposure of anyone beyond permissible limits.

The designers of nuclear plants assume failure to occur, and provide multiple safeguards protection against every conceivable malfunction (P. 7, Emphasis supplied.)

The third pamphlet (Exh. "LL") is entitled NUCLEAR POWER PLANT and ENVIRONMENTAL SAFETY. Speaking specifically of the PNPP-1 it categorically states that the Bataan nuclear plant will not adversely affect the public or the flora or fauna in the area. One of the stated reasons in support of the conclusion is—

And environmentally, a nuclear power plant emits only insignificant amount of radioactivity to the environment. It does not cause chemical pollution of air or water, it does not emit sulfur dioxide or nitrogen oxides like plants fired by fossil fuels such as coal and oil, Besides, even coal fired plants may

emits radioactive particles of uranium and thorium because these may be found naturally associated with coal deposits.

Comparatively therefore, a nucelar power plant is the cleanest and the safest environmently no other technology in modern times has been developed with so dominant concern for public safety as nuclear power. (p. 8)

Respondent PAEC Commissioners cannot escape responsibility for these official pamphlets. Exhibit "JJ" was published in 1985, when respondent Commissioners had already been appointed to their present positions. Exhibits "KK" and "LL" were issued earlier, but the majority of respondent Commissioners even then were already occupying positions of responsibility in the PAEC. Commissioner Manuel Eugenio was Acting Chief of the PAEC Department on Nuclear Technology and Engineering from June, 1980 to July, 1984; Commissioner Quirino Navarro was PAEC Chief Science Research Specialist from May, 1980 to September, 1984-, and Commissioner Alejandro Ver Albano was PAEC Deputy Commissioner from March, 1980 to September, 1984. Additionally, the stubborn fact remains unrebutted that Exhibits "J.J." "KK" and "LL" continued to be distributed by PAEC as late as March, 1985. In other words their official distribution continued after the filing of NPC's motion for conversion on June 27, 1984 and even after PAEC had issued its order dated February 26, 1985 formally admitting the said motion for conversion.

At any rate, even if it be assumed that there are some doubts regarding the conclusion that there has been a prejudgment of the safety of PNPP-1 the doubts should be resolved in favor of a course of action that will assure an unquestionably objective inquiry, considering the circumstances thereof and the number of people vitally interested therein.

Having thus prejudged the safety of the PNPP-1 respondent PAEC Commissioners would be acting with grave abuse of discretion amounting to lack of jurisdiction were they to sit in judgment upon the safety of the plant, absent the requisite objectivity that must characterize such an important inquiry.

The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from further acting in PAEC Licensing Proceedings No. 1-77.

II. In G.R. No. 68474, acting on the motion filed therein dated June 8, 1985 to order PAEC to reconsider its orders of May 31 and June 5, 1985, the urgent motion for mandatory injunction and/or restraining order dated August 3, 1985, the second urgent motion for mandatory injunction dated August 12, 1985, and the various pleadings and other documents submitted by the parties relative thereto, and considering the paramount need of a reasonable assurance that the operation of PNPP-1 will not pose an undue risk to the health and safety of the people, which dictates that the conduct of the inquiry into the safety aspects of PNPP-1 be characterized by sufficient latitude, the better to achieve the end in view, unfettered by technical rules of evidence (Republic Act 5207, section 34), and in keeping with the requirements of due process in administrative proceedings, the Court Resolved to ORDER respondent PAEC (once reconstituted) to re-open the hearing on PNPP-1 so as to give petitioners sufficient time to complete their cross-examination of the expert witnesses on quality assurance, to cross-examine the witnesses that petitioners have failed to cross-examine on and after August 9, 1985, and to complete the presentation of their evidence, for which purpose, respondent PAEC shall issue the necessary subpoena and subpoena duces tecum to compel the attendance of relevant witnesses and/or the production of relevant documents. For the said purposes, the PAEC may prescribe a time schedule which shall reasonably assure the parties sufficient latitude to adequately present their case consistently with the requirements of dispatch. lt is understood that the PAEC may give NPC the opportunity to correct or supply deficiencies in this application or evidence in support thereof.

Separate Opinions

 ABAD SANTOS, J., concurring:

I associate myself with Justice Plana's position. Additionally, I would like to answer the question posed by Justice Patajo who asks: "Can We compel the President to designate another body to try the case pending before PAEC or appoint temporary commissioners while respondents are still holding office?

No, this Court cannot compel the President to designate another body or appoint temporary commissioners. It would be unthinkable for this Court to compel the President of the Philippines to do anything at anytime. What this Court should do is to restrain the commissioners from further acting in PAEC Licensing Proceedings No. 1-77. What the President does thereafter is for him to decide. This Court does not tell him what to do. It cannot because of the separation of powers and the obvious fact that he is not a party to the proceedings.

AQUINO, C.J., dissenting

I dissent. G.R. No. 68474 is an action filed on September 1, 1984 for mandamus and injunction wherein the petitioners, as taxpayers and citizens, prayed that the Philippine Atomic Energy Commission (PAEC) and the National Power Corporation be ordered to give public notice and hold a public hearing and give the petitioners copies of the contracts with Westinghouse.

This prayer had been granted by the respondents. As noted by the Solicitor General, that case had been terminated (pp. 370-371, Vol. 11, Rollo of G.R. No. 68474, p. 410 Vol. II, Rollo of G.R. No. 70632). Therefore, G.R. No. 68474 had become MOOT and ACADEMIC.

G.R. No. 70632 is an action filed on April 27, 1985 by the petitioners, as citizens and taxpayers, for prohibition and injunction praying that the PAEC be enjoined from hearing the NPC's motion for a license to operate the Bataan Nuclear Plant.

In its resolution of August 29, 1985 this Court issued a temporary restraining order enjoining the PAEC from further proceeding in the licensing proceedings. The petitioners had participated in the hearings on said motion. They used about 153 hours out of the 205 hours consumed in the course of the hearings (p. 413, Vol. I 1, Rollo of G. R. No. 70632).

The instant case of G.R. No. 70632 should be DISMISSED because the petitioners HAVE NO CAUSE OF ACTION FOR PROHIBITION AND INJUNCTION (See dissent in G.R. No. 68474 dated May 14,1985,395-B, Vol. 11, Rollo).

As taxpayers and citizens, they have no legal standing to file the petition. Generally, a citizen and taxpayer cannot invoke judicial power to determine the validity of an executive or legislative action (Subido vs. Sarmiento, 108 Phil. 150, 157).

Prohibition is not the same as injunction. Lawyers often make the mistake of confusing prohibition with injunction. Basically, prohibition is a remedy to stop a tribunal from exercising a power beyond its jurisdiction. The PAEC has been acting within its jurisdiction. Prohibition does not lie against it.

Prohibition is an extraordinary prerogative writ of a preventive nature, its proper function being to prevent courts or other tribunals, officers, or persons from usurping or exercising a jurisdiction with which they are not vested (73 C.J.S. 10).

This Court has no original jurisdiction to issue the writ of injunction. Hence, that remedy cannot be invoked here.

The matter of the operation of a nuclear plant is a political question. It is a question of policy as to which the Executive Department has discretional authority (Tanada and Macapagal vs. Cuenco, 103 Phil. 1051, 1067).

No justiciable controversy is involved in the instant case. The great public interest involved in the dispute does not justify the petitioners in USING THIS COURT TO INTERFERE with the hearings conducted by the PAEC and with its interlocutory orders.

Its decisions are reviewable by the Appellate Court in accordance with section 9 of the Judiciary Revamp Law in relation to section 36 of Republic Act No. 5207. The petitioners should not be allowed to use this Court as an instrument to stop the operation of the nuclear plant. This Court is not competent, and it has no jurisdiction in this case, to determine its safety. This case cannot be utilized for making a pronouncement as to its safety.

Secretary Vicente Abad Santos in his opinion dated February 27, 1976 held that the nuclear plant contract is lawful (p. 1 1 1, Vol. 1, Rollo of G.R. No. 68474).

The matter of safety had been passed upon by a Commission composed of Justices Puno, Vasquez and Bautista in a 140-page report dated November 13, 1979 and by the International Atomic Energy Agency in 1984 and in 1985. (See Comment of NPC dated November 20, 1985, Vol. IV, Rollo of G.R. No. 68474.)

Petitioners should resort to other forums for the articulation of their opposition to the nuclear plant. It is not wrong to oppose the nuclear plant. What is wrong is to employ this Court without justification as a weapon for opposing it.

G.R. No. 70632 should be DISMISSED FOR LACK OF MERIT. The restraining order should be lifted. As already shown, G.R. No. 68474 had become MOOT.

PATAJO, J., dissenting:

I vote for the dismissal of G.R. No. 68474 for being moot and academic joining in this score the separate opinion of the Chief Justice.

I vote also for the dismissal of G.R. No. 70632, said action being premature. There is no showing that the competence of PAEC Commissioners to seat on the case had been properly brought against said Commissioners and the latter had denied said challenge. More importantly prohibition or injunction is not the proper remedy to question the competence or qualification of one properly appointed to an office or position. If respondent Commissioners have been validly appointed as PAEC Commissioners prohibition will not lie to prevent them from performing their functions on the ground that they do not possess necessary competence or know how to do their job.

I believe, further, that the pamphlets and articles published by PAEC regarding the safety of nuclear plants which have not been shown to have been prepared by the Commissioners themselves can be taken as evidence of bias in favor of granting the license to operate the nuclear plant in question. I am more inclined to believe that said articles refer to the safety of nuclear plants per se and not particularly to the Bataan nuclear plant. I trust that respondent Commissioners can still be objective in their disposition of the petition pending before them and can decide the same on the basis of the evidence presented during the continuation of the hearing. From their decision the aggrieved party can appeal to the Intermediate Appellate Court.

Another important consideration that must not be overlooked is that if respondent PAEC Commissioners are disqualified who will try the case? Can We compel the President to designate another body to try the case pending before PAEC or appoint temporary commissioners while respondents are still holding

office? Would not such a dilemma result in a stalemate and further delay? It is no answer to said dilemma as suggested by petitioners that respondent Commissioners could resign and pave the way for the appointment of their replacements. For them to resign would be a virtual admission of the claim of petitioners that they are incompetent.

GUTIERREZ, JR., J., concurring and dissenting:

I concur in the Court's resolution but am registering a dissent insofar as Commissioner Reynaldo Suarez is concerned. The PAEC exercises both quasi-legislative and quasi-judicial powers. During the hearings involving tens of billions of pesos of public funds, the immediate resolution of difficult procedural questions is often necessary. Complex issues calling for the application of an entirely new field of substantive law are raised before the Commission. Resultant criminal prosecutions or civil suits are ever present possibilities. I believe that the constitutional requirement of due process calls for the appointment of a qualified "law member" in the Commission. Commissioner Suarez, a former Nueva Ecija Regional Trial Court Judge and prominent practising lawyer of Angeles City is qualified for the position. Regarding the official pamphlets issued by PAEC, all except one of the pamphlets were issued before Commissioner Suarez' appointment to the Commission and as for the one exception, there is no showing that he was involved or had anything to do with its preparation and issuance.

Considering the foregoing, the law member should not be included in the Court's action regarding the respondent Philippine Atomic Energy Commission.

MATHAY VS CSC

G.R. No. 130214           August 9, 1999

ISMAEL A. MATHAY, JR., petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

DAVIDE, JR., CJ.:

Petitioner Ismael A. Mathay, Jr. (hereafter MATHAY); Mayor of Quezon City, seeks the nullification of the resolutions of the Civil Service Commission (CSC) recalling his appointment of Olegario S. Tabernilla (hereafter TABERNILLA) as Electrical Engineer V in the city government; and consequently, the reversal of the Resolutions of the Court of Appeals of (1) 16 July 1997 denying due course and dismissing the petition for certiorari docketed as CA-G.R. No. 44431, and (2) 12 August 1997 denying the motion for reconsideration.

The antecedent facts follow:

On 26 November 1992, the Quezon City Council enacted City Ordinance No. SP-33, S. 92, creating an Electrical Division under the Engineering Department with thirty-six new plantilla positions to complement the staffing requirements. One of those newly created positions was Electrical Engineer V, which required a Professional Electrical Engineer to fill it up and which became the subject of a heated competition by two licensed professional electrical engineers, TABERNILLA and Jose I. Enriquez (hereafter ENRIQUEZ). The former was an Engineer II, and the latter was an Electrical Engineer III of the existing Electrical Division under the City Fire Department, which was previously part of the Quezon City Government but which was later transferred to the Bureau of Fire Protection, Quezon City Fire Station. Conformably to the long existing city policy of providing preferential consideration to Quezon City residents in the filling up of positions in the city office, the Personnel Selection Board of the city government recommended the appointment of TABERNILLA, who had in his favor the advantage of being a Quezon City resident.1âwphi1.nêt

On 22 August 1994, MATHAY extended to TABERNILLA a permanent appointment, which was approved on 15 September 1994 by the CSC Regional Field Office Acting Director II, Ligaya I. Caya.1 TABERNILLA thereafter took his oath of office and assumed the duties of his new position.

ENRIQUEZ disputed the "promotional" appointment before the CSC, claiming it was issued in clear violation of CSC MC No. 42, s. 1991, which prescribes a Bachelor's Degree in Engineering as the educational requirement for the service-wide position of Engineer V. TABERNILLA, a mere Associate Electrical Engineer and not a holder of a Bachelor's Degree, clearly failed to meet the qualifications of the position and, therefore, could not be validly appointed thereto.

Requested to comment on the protest, MATHAY maintained that TABERNILLA's assumption of the position effective 1 October 1994 mooted the protest, adding that his appointee met the minimum requirements of the position as specified in the City Ordinance and existing hiring policies.

In its Resolution No. 95-1218 dated 10 January 19952 the CSC recalled and revoked the appointment of TABERNILLA; thus:

After a careful review of the records, the Commission finds the appointment issued to Tabernilla not in order.

The requirements prescribed by the qualification standard for the position of Engineer V are as follows:

EDUCATION: Bachelor's degree in Engineering relevant to the job.

EXPERIENCE: 4 years in position/s involving management and supervision.

The records clearly show that Tabernilla has not obtained any bachelor's degree in engineering. This is even reflected in the evaluation sheet for the position of Engineer V, which was submitted by Mayor Mathay. It appears in said evaluation sheet that Tabernilla is only a graduate of Associate in Electrical Engineering. Thus, he was not qualified for appointment to the position of Electrical Engineer V.

WHEREFORE, the approval of the appointment of Olegario S. Tabernilla as Engineer V dated August 22, 1994, is hereby recalled and revoked.

Ligaya Caya, Acting Field Officer is hereby directed to explain in writing within five (5) days from receipt hereof why she approved Tabernilla's appointment under permanent status although he does not meet the qualification requirements.

MATHAY moved for the reconsideration3 of the said Resolution, alleging that the Ordinance which was the law that created the office unequivocally specified a Professional Electrical Engineer as its only requirement; hence, the appointee needed only to comply therewith. While conceding that the appointment in local government units are subject to civil service laws, rules and regulations, MATHAY averred that such truism cannot override the right of the right of the appointing power to choose his appointee, considering that the power of appointment is essentially discretionary.4 MATHAY further argued that TABERNILLA's title to the office became complete with the confirmation by the CSC Regional Field Office of TABERNILLA's appointment and his subsequent taking of the of the oath of office and assumption of duties. TABERNILLA then acquired a legal right which could not be taken away from him either by revocation of the appointment or by removal except for cause and with previous notice and hearing.5 MATHAY then intimated that TABERNILLA was not notified of the protest, nor was a hearing conducted thereon.

MATHAY thereafter filed a supplemental motion manifesting that under Republic Act. No. 184,6 the education requirement for admission to the Electrical Engineering Board Examinations is only two years of resident collegiate engineering training. Since TABERNILLA completed the two-year Associate in Electrical Engineering course and passed the board examinations, he was qualified for the contested position.

In Resolution 95-17437 dated 9 March 1995, the CSC denied the motion for reconsideration. It elucidated that under Sections 76, 77 and 78 of R.A. No. 7160, otherwise known as the Local Government Code of 1991, the CSC has the power to determine the qualification standards for the various positions in the local government and review whether the appointments meet these standards. The qualification standards for new offices, which local governments have the authority to create, must not be lower than those prescribed by the CSC. Under existing civil service laws and rules, an appointee to Engineer V must possess a Bachelor's Degree in Engineering. TABERNILLA certainly failed to qualify for the position. The fact that he met all the requirements for admission to Electrical Engineering Board Examination as provided for under R.A. No. 184, and passed the said examination does not mean compliance with the prescribed qualification standards.

On 7 September 1995, TABERNILLA filed his own "petition" praying for the review of, and "second hard look" on, Resolutions Nos. 95-0218 and 95-1743.

On 13 June 1996, the CSC issued Resolution No. 9637798 denying the "petition," which it treated as a motion for reconsideration. It ratiocinated that TABERNILLA had no legal personality to file such a pleading because under MC 38, s. 93, Part I(3), a "[r]equest for reconsideration of action taken by the CSC Office on appointments shall always be made by the appointing officer." Besides, the allegations in the said "petition" were not meritorious.

On 25 July 1996, MATHAY filed a "petition" with the CSC praying for the "review and reconsideration" of the three adverse Resolutions thus far issued, and reiterating therein the arguments adduced in the first motion for reconsideration.

The "petition" obtained a similar unpropitious fate with the CSC's denial of the same per Resolution No. 9725459 dated 14 April 1997 on the grounds that (1) the "petition" was in the nature of a second motion for reconsideration, which was not allowed pursuant to Section 9 of the Uniform Rules of Procedures in the Conduct of Administrative Investigations, as "only one motion for reconsideration [could] be entertained"; and (2) it was filed late.

Undaunted, MATHAY filed before the Court of Appeals on 17 June 1997 a petition for certiorari under Rule 65 of the Revised Rules of Court contending that the CSC acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution Nos. 95-0218, 95-1743, 96-3779, and 97-2545.

The Court of Appeals, however, dismissed the petition in a Resolution10 promulgated on 16 July 1997 "for being the wrong remedy and for being time-barred." It ruled that the petition for certiorari filed nineteen days after receipt of Resolution No. 97-2545 could not be a substitute for a lost appeal.

In his motion for reconsideration, MATHAY argued that "what was brought to fore" in his petition for certiorari was an error of jurisdiction in that the CSC had no jurisdiction or authority to revoke or cancel an approved and completed appointment to a civil service position. Hence, Rule 65 of the Rules of Court, not Supreme Court Administrative Circular No. I-95, applied.

Unimpressed, the Court of Appeals denied the motion for reconsideration in a Resolution 11 promulgated on 12 August 1997, adverting to the same reasons relied upon in dismissing the petition. Furthermore, it held that MATHAY was precluded from raising the question of jurisdiction, since he failed to submit the same as an issue in the proceedings before the CSC.

MATHAY now posits in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure that the Court of Appeals committed gross errors of law in holding that (1) his petition for certiorari was not the proper remedy and could not be a substitute for appeal; (2) said petition was time-barred; (3) the CSC had jurisdiction to recall and revoke a completed appointment; and (4) petitioner did not raise the question of jurisdiction in the proceedings before the CSC such that he was guilty of laches and estoppel.

The CSC, through the Office of the Solicitor General, remains steadfast in its view that it committed no error of jurisdiction, as it was merely enforcing its revisory power over a subordinate when it reversed the erroneous determination by the Regional Field Office of TABERNILLA's qualification. The CSC now proposes that the Quezon City ordinance was an ultra vires act, considering that the same prescribed a qualification standard lower than that set for the position, and, hence, fell short of the injunction of Section 78 of R.A. No. 7160 that all matters pertinent to human resources and development in local government units should be governed by civil service laws.

The instant petition must fail.

It must be recalled that in its Resolution of 9 March 1995 the CSC denied petitioner's motion for the reconsideration of its Resolution of 10 January 1995 revoking the appointment of TABERNILLA. Petitioner received a copy of the former Resolution on 4 April 1995. At the time, judgments or final orders of the CSC were unappealable.12 It was only on 1 June 1995 that Revised Administrative Circular No. 1-95 took effect. That Circular provides that judgments or final orders of quasi-judicial agencies, like the CSC, may be appealed to the Court of Appeals within fifteen days from notice thereof. Hence, before that date, judgments or final orders of the CSC were subject only to the certiorari jurisdiction of this Court.13

Section 7, Subdivision A, Article IX of the Constitution provides:

Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court by certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

The remedy, therefore, of petitioner was to file with this Court a special civil action for certiorari within thirty days from 4 April 1995. But he failed to do so; thus, the challenged resolutions became final.

Notwithstanding the finality of the aforementioned resolutions, TABERNILLA filed on 7 September 1995 a petition before the CSC for the review of said resolutions. As correctly held by the CSC, the said petition, which was in fact a motion for reconsideration, would not prosper because under Part I(3) of Memorandum Circular No. 38, Series of 1993, only the appointing officer, in this case MATHAY, can request reconsideration of actions taken by the CSC on appointments. Besides, the said petition was filed long after the resolutions sought to be reconsidered became final.

But still, on 25 July 1996, or more than a month after the issuance of the resolution denying TABERNILLA's motion for reconsideration, MATHAY filed with the CSC a petition for the review and reconsideration of the three resolutions thus far issued. This petition was correctly treated by the CSC as a second motion for reconsideration, it having been filed with the same body that issued the assailed resolutions, coupled with the fact that it was a rehash of the arguments raised in the first motion for reconsideration. As such, the same could not be considered because under Section 9 of the Uniform Rules of Procedure in the Conduct of Administrative Investigations, which is applicable to protests or questions involving the issuance of appointments, "only one motion for reconsideration shall be entertained." Section 17, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws also provides: "In all instances, only one petition for reconsideration shall be entertained." Even assuming that a second motion for reconsideration was allowed by the Rules, MATHAY's "petition" would still be met with denial because it was filed more than a year after his receipt of the resolution denying his first motion for reconsideration.

As earlier discussed, the Resolutions of 10 January and 9 March 1995 had already attained finality. This Court, therefore, finds no necessity to pass upon the timeliness or propriety of the petition for certiorari filed by MATHAY before the Court of Appeals on 17 June 1997, or after more than two years from the date the said resolutions became final.

Nevertheless, even granting for the sake of argument that the questioned resolutions were not yet final and that MATHAY's second motion for reconsideration was allowed and seasonably filed, the petition for certiorari instituted before the Court of Appeals had to be dismissed just the same. The special civil action for certiorari under Rule 65 of the Rules of Court will lie only if there is no appeal or any plain, speedy or adequate remedy in the ordinary course of law.14 In this case, after the denial of MATHAY's second motion for reconsideration, appeal was available as a remedy. As earlier mentioned, Revised Administrative Circular No. 1-95, which took effect on 1 June 1995, provides for an appeal to the Court of Appeals from the judgments, final orders or resolutions of the Civil Service Commission. And Section 4 thereof mandates that the appeal be taken within fifteen days from notice of the denial of the motion for reconsideration duly filed in accordance with the governing law of the court or agency a quo. Here, MATHAY filed his petition before the Court of Appeals on 17 June 1997, or nineteen days after his receipt of the resolution denying his second motion for reconsideration. As held in cases too numerous to mention, a special civil action for certiorari cannot be availed of as a substitute for a lost or lapsed remedy of appeal.15

The petitioner asseverates, however, that the said resolutions were void and were issued in violation of due process; hence, they could never become final, and they could be attacked directly or collaterally even after the time of appeal or review has lapsed. According to him, the CSC had no jurisdiction or authority to revoke or cancel an appointment to a civil service position after its Regional Office had approved the same and the appointed had assumed the new position.

We cannot subscribe to petitioner's theory. Under Section 12 (11) of Book V of Executive Order No. 292, otherwise known as the "Administrative Code of 1987," the CSC has the power to "[h]ear and decide administrative cases instituted before it directly or on appeal, including contested appointments, and review decisions and actions of its agencies and of the agencies attached to it." Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V Executive Order No. 292 and Other Pertinent Civil Service Laws provides that notwithstanding the initial approval of an appointment, the same may be recalled for "[v]iolation of other existing Civil Service laws, rules and regulations." As held in Debulgado v. Civil Service Commission,16 the CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations."

Accordingly, it cannot be said that the CSC did not have jurisdiction or gravely abused its discretion in recalling the appointment of TABERNILLA, which was issued in violation of existing civil service rules prescribing a Bachelor's Degree in Engineering as one of the minimum qualifications for the questioned position.

Anent petitioner's imputation to the CSC of violation of due process, the same does not hold water. What was lodged before the Commission was not disciplinary case wherein petitioner or TABERNILLA should have been afforded an opportunity to be heard. As ruled in Debulgado,17 the CSC, in approving or disapproving an appointment, "only examines the conformity of the appointment with applicable provisions of law and whether the appointee possesses the minimum qualifications and none of the disqualifications." At any rate, petitioner was requested to comment on the protest; and he did file comment and, later, a motion for reconsideration of the revocation of the initially approved appointment.

Finally, petitioner fears that if the CSC resolutions recalling the appointment made by MATHAY is upheld, it would "throw out of job a civil service employee who had rendered more than forty years of satisfactory service for the Government, all because he relied on the presumption that the Acting Regional Director regularly performed her official duty."

Petitioner's apprehension is without basis. Section 19, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292 , as well as Sections 43 and 48 of the Uniform Rules of Procedure in the Conduct of Administrative Investigations, specifically provides that in case the protest is finally resolved against the protestee, his appointment shall become ineffective and he shall be reverted to his former position.

WHEREFORE, the present petition is DISMISSED. The challenged resolutions of the Civil Service Commission are hereby AFFIRMED.1âwphi1.nêt

SO ORDERED.

UP AND ALFREDO TORRES VS CSC

G.R. No. 132860      April 3, 2001

UNIVERSITY OF THE PHILIPPINES and ALFREDO DE TORRES, petitioners, vs. CIVIL SERVICE COMMISSION, respondent.

PANGANIBAN, J.:

As part of its academic freedom, the University of the Philippines has the prerogative to determine who may teach its students. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the October 31, 1997 Decision1 of the Court of Appeals (CA)2 in CA-GR SP No. 40128. The CA upheld Resolution Nos. 95-30453 and 96-10414 issued by the Civil Service Commission (CSC) on May 5, 1995 and February 15, 1996, respectively. In these Resolutions, the CSC held that Petitioner "Alfredo De Torres is considered to have been dropped from the service as of September 1, 1989. Hence, his re-employment requires the issuance of an appointment subject to the requirements of the Civil Service Law and Rules."

De Torres' Motion for Reconsideration of the CA Decision was denied in the February 25, 1998 Resolution of the Court of Appeals.5

The Facts

The undisputed factual antecedents are summarized by the Court of Appeals thus:

"Dr. Alfredo B. De Torres is an Associate Professor of the University of the Philippines in Los Baños (UPLB) who went on a vacation leave of absence without pay from September 1, 1986 to August 30, 1989. During this period, he served as the Philippine Government'' official representative to the Centre on Integrated Rural Development for Asia and [the] Pacific (CIRDAP).

"When the term of his leave of absence was about to expire, CIRDAP requested the UPLB for an extension of said leave of absence for another year, but was denied by Dr. Eulogio Castillo, the then Director of the Agricultural Credit Corporation, Inc. (ACCI) of UPLB. In the same letter, Dr. Castillo advised Dr. De Torres to report for duty at UPLB not later than September 15, 1989; while the then UPLB Chancellor Raul P. de Guzman apprised him on the rules of the Civil Service

on leaves and warned of the possibility of being considered on Absence Without Official Leave (AWOL) if he failed to return and report for duty as directed.

"On August 27, 198[9], Dr. De Torres wrote UPLB that he had 'no alternative but x x x to pursue the matter in continuing his commitment to CIRDAP.' In response thereto, Chancellor de Guzman warned De Torres, in a Letter dated November 20, 1989, that in case of the latter's failure to report 'within 30 days from today,' UPLB would be forced to drop him from the rolls of personnel. Despite the warning, Dr. De Torres did not report to work.

"On January 3, 1994 or after almost five years of absence without leave, Dr. De Torres wrote the incumbent Chancellor Ruben L. Villareal that he was reporting back to duty at ACCI-UPLB effective January 3, 1994 x x x. However, Chancellor Villareal notified Dr. De Torres that 'when an employee reports back for duty, he should have been from an approved leave …' Likewise, Director Leodegacio M. Ilag, of ACCI-UPLB, in a Letter dated February 10, 1994, informed De Torres that in the absence of any approved application for leave of absence, he [was] considered to be on AWOL. Thus, he was advised to re-apply with UPLB.

"On June 30, 1994, Dr. De Torres wrote Chancellor Villareal seeking reconsideration [of] the two aforementioned decisions x x x. On July 4, 1994, Chancellor Villareal reversed his earlier stand and notified De Torres that since records at UPLB [did] not show that he ha[d] been officially dropped from the rolls he may report for duty effective January 3, 1994 x x x.

"Mesdames Juanita Baskinas and Winifreda Medina, members of Academic Personnel Committee, ACCI-UPLB, requested the Civil Service Commission regarding the employment status of Dr. De Torres x x x.

"On May 5, 1995, the Commission issued CSC Resolution No. 95-3045 x x x, the dispositive portion of which reads:

'WHEREFORE, the Commission hereby rules that Dr. De Torres is considered to have been dropped from the service as of September 1, 1989. Hence, his re-employment requires the issuance of appointment subject to the requirements of Civil Service Law and Rules.'

"On June 9, 1995, Dr. De Torres and the University of the Philippines at Los Baños (UPLB) filed separate requests for reconsideration of aforesaid CSC Resolution No. 95-3045 dated May 5, 1995. In its CSC Resolution No. 96-1041 x x x, the commission denied the motion for reconsideration, further stating that CSC Resolution No. 95-3045 [stood] and that since separation from the service [was] non-disciplinary in nature, the appointing authority may appoint Dr. De Torres to any vacant position pursuant to existing civil service law and rules."6

The CSC rationalized its ruling in this manner:

"It could be gleaned from the foregoing circumstances that De Torres was already on AWOL beginning September 1, 1989 since his request for extension of leave of absence for one year was denied by then Chancellor De Guzman. It is a fact that De Torres' absence from work was not duly authorized by UPLB. Despite the advice of Chancellor De Guzman to him that he should report for duty on or before September 5, 1989, De Torres failed to do so. Thus, his failure to assume duty as ordered caused his automatic separation from the service."

The Ruling of the CA

From the unfavorable Resolutions of the CSC, petitioners sought recourse before the Court of Appeals. But, finding "no grave abuse of discretion amounting to lack or x x x excess of jurisdiction on the part of the respondent commission in the issuance of the questioned Resolution," the appellate court dismissed the Petition for lack of merit. Petitioners' Motion for Reconsideration was denied in the CA Resolution dated February 25, 1998. Thus, this Petition for Review.7

Issues

Petitioners submit the following questions of law for the Court's consideration:8

"I

Whether or not a new appointment is still necessary for Dr. de Torres to resume his post at the UNIVERSITY despite having remained continuously with the Civil Service, not having been dropped from the rolls of the University, and after returning to fulfill his service contract as a government scholar.

"II

Whether or not the issuance by the COMMISSION of Resolution Nos. 95-3045 and 961041, was in excess of its authority.

"III

Whether or not the COMMISSION violated the Subido-Romulo Agreement which is still in force and effect.

"IV

Whether or not the express repeal of the old law had the effect of doing away with the policy of automatic dropping from the government service in favor of notice before dropping.

"V

Whether or not Section 33 of Rule XVI is ultra vires as it does not relate or is not in any way connected with any specific provision of R.A. No. 2260.

"VI

Whether or not Resolution No. 95-3045 violated Dr. de Torres' constitutional right to due process."

In the main, the issue is the validity of Dr. Alfredo de Torres automatic separation from the civil service due to his prolonged absence without official leave.

The Court's Ruling

The Petition is meritorious.

Main Issue:

Validity of Automatic Separation from the Civil Service

In brief, petitioners argue that (1) the issuance of a new appointment in favor of Petitioner De Torres is not needed, because he was not formally dropped from the rolls of the University of the Philippines; (2) the assailed CSC Resolutions were issued in excess of authority, because the CSC had violated the Subido-Romulo Agreement and disregarded the University's academic freedom, which includes the right to determine who may teach and who may be dropped dropped from the service; (3) Section 33, Rule XVI of the Revised Civil Service Rules – based on which respondent justified Petitioner De Torres' automatic separation from the service – has been repealed and superseded by PD 807, as well as by EO 292 (Administrative Code of 1987) which decrees prior notice before actual dropping; (4) even assuming that the said provision was not repealed, the issuance of the Ruel was ultra vires because it was not related or connected to any specific provision of the mother law, RA 2260; and (5) the assailed CSC Resolutions violated petitioner's right to due process, because he had not been given prior notice of his actual separation.

On the other hand, respondent, through the solicitor general, contends that (1) "[I]t is of no legal moment that petitioner De Torres' name is still listed in the rolls of UPLB faculty members since his mandatory separation from the government service was ipso jure upon his failure to report for duty within the period prescribed by his superior"; (2) the new Civil Service Rules did not repeal but complement Section 33, Rule XVI of the Revised Civil Service Rules, with the additional provision on notice of actual dropping; (3) Section 33 was a valid exercise by the CSC of its rule-making power to discipline erring employees of the civil service; and (4) sufficiently constituting due notice of his separation from the service were the denial of Petitioner De Torres' request for an extension of his leave of absence, coupled with the advice for him to report for work and the UPLB Chancellor's subsequent letter informing him that in case he failed to report within thirty (30) days, he would be dropped from the rolls of its personnel.

We now rule on these arguments. The Civil Service Commission predicated its ruling on Section 33, Rule XVI of the Revised Civil Service Rules, which was in effect at the time. The provision states:

"Under no circumstances shall leave without pay be granted for more than one year. If an employee who is on leave without pay for any reason fails to return to duty at the expiration of one year from the effective date of such leave, he shall be considered automatically separated from the service; Provided, that he shall, within a reasonable time before the expiration of his one year leave of absence without pay, be notified in writing of the expiration thereof with a warning that if he fails to report for duty on said date, he will be dropped from the service."

According to respondent, this provision speaks of automatic separation from the service, even without prior notice and hearing. It extensively cites Quezon v. Borromeo,9 which supposedly held that the absence of notice to or investigation of the erring employee "is not jurisdictional in cases involving Section 33, Rule XVI of the Revised Civil Service Rules."

The case cited involved the chief nurse of the Iligan City Hospital who had initially been authorized to go on special study detail to take up or complete a degree in nursing for a period of not more than twelve (12) months. Afterwards, she requested two extensions of her leave, which were both granted, albeit charged to her accumulated leave credits and, after exhaustion thereof, without pay. Her extended leave totaled nineteen (19) months. Subsequently, she sought a third extension of leave, which was, however, not acted upon by the authorities. Notwithstanding the lack of approval, she remained on leave and further requested a fourth extension. By indorsement of the regional director, this fourth request was disapproved, with the statement that her continuous leave of absence was in violation of Section 33, Rule XVI of the Civil Service Rules. Subsequently, an appointment was issued to another person as chief nurse.

More than two years after the expiration of her last approved leave, the petitioner reported for duty, but she was informed that she had been dropped from government service. The Court held that she had automatically been dropped from the service after failing to return to work at the end of her approved leave. With respect to the lack of written notice of the impending expiration of her leave, with a warning that she would be dropped from the service if she failed to report for duty upon such expiration, the Court

adverted to an earlier case, Isberto v. Raquiza.10 In that case, the Court held that the employee, who had been absent without official leave, ought to have known that he was deemed automatically separated from the service from the time his approved leave expired. The High Court pointed out that he was not excused by his ignorance of the rule providing for automatic separation from the service upon failure to return to work after the lapse of the leave of absence without pay.

The Court also referred to Ramo v. Elefaño,11 which had sustained the dropping of the petitioner from the service for her failure to return to duty after the expiration of her leave of absence. The letter disapproving her request for extension of leave on the ground of Section 33, Rule XVI was communicated to her "for her information and compliance" only after her leave had already expired.

The core of the holdings in the above-cited cases was whether the absence of prior written notice by the appropriate government agency would prevent the dropping of the employee concerned from the service. The Court held that under the rules then prevailing, such absence did not.

This issue, however, is not determinative of the present case. There is no question that the UPLB Chancellor had advised petitioner on the Civil Service Rules regarding leaves. The former warned the latter of the possibility of being considered on AWOL (absence without leave) and of being dropped from the service, if he failed to return and report for duty upon the expiration of his authorized leave. Consistent with the cases discussed above, these action constituted sufficient notice.

The pivotal issue herein, however, is whether petitioner was indeed dropped from the service by the University. By respondent's contention, Section 33 of Rule XVI automatically operates; thus, whether or not to give effect to the provision is not within the discretion of the government agency concerned.

We do not agree, insofar as institutions of higher learning are concerned. In the three cases mentioned earlier, the concerned employees were actually dropped from the rolls by their respective agencies. As a matter of fact, in Quezon, the petitioner-employee was replaced by a new appointee. In Isberto, the petitioner-employee's position had initially been declared vacant, then filled up by another. Also, in Ramo the school's board of trustees passed a Resolution dropping the petitioner from the service for her failure to return to duty after the expiration of her leave of absence; it then passed another Resolution appointing her replacement.1âwphi1.nêt

In the case at bar, however, Petitioner De Torres was never actually dropped from the service by UP. He remained in the UPLB's roll of academic personnel, even after he had been warned of the possibility of being dropped from the service if he failed to return to work within a stated period. Indeed, as Vice Chancellor for Academic Affairs Emiliana N. Bernardo explained to the CSC in her October 12, 1994 letter:12 "UPLB records show that no notice or order of dropping Dr. de Torres from the rolls was ever issued by the UPLB Chancellor. On the contrary, UPLB records show that his salary was increased several times during his absence – on January 1, 1988, March 16, 1988, and July 1, 1989. His appointment was also reclassified with promotion in rank from Training Specialist II to Assistant Professor IV effective March 16, 1988. This promotion was approved by the UP Board of Regents during its 1015 th

meeting held on August 25, 1988."

Verily, these acts are clearly inconsistent with separation or dropping from the service. Private petitioner was not only retained in the roll of personnel; his salary was even increased three times. Moreover, he was promoted in rank with the explicit approval of the Board of Regents, the highest governing body of UP.13 Since the commencement of the Complaint before the CSC, the University has consistently stood by his side. When respondent ruled against him in its assailed Resolution No. 95-3045, the University promptly filed a Motion for Reconsideration favoring his cause. Then, UP joined Dr. De Torres in his appeal before the Court of Appeals, as well as in the Petition now before us. All these circumstances indubitably demonstrate that the University has chosen not to exercise its prerogative of dismissing petitioner from its employ.

UP's actuations, in spite of Section 33, Rule XVI of the Revised Civil Service Rules, are consistent with the exercise of its academic freedom. We have held time and again that "the University has the academic freedom to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."14 Clearly, this freedom encompasses the autonomy to choose who should teach15 and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel. This Court declared in Ateneo de Manila University v. Capulong: "As corporate entities, educational institutions of higher learning are inherently endowed with the right to establish their policies, academic and otherwise, unhampered by external controls or pressure."16 Similarly, Vicente G. Sinco, a former UP president and delegate to the 1973 Constitutional Convention, stressed that the Constitution "definitely grants the right of academic freedom to the University as an institution as distinguished from the academic freedom of a university professor."17

We are not unaware that academic freedom has been traditionally associated with freedom of thought, speech, expression and the press.18 But, as explained by Constitutional Commissioner Adolfo S. Azcuna during the deliberations on Section 5 (2), Article XIV19 of the 1987 Constitution, "[s]ince academic freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to develop further the parameters of academic freedom."20

Thus, we hold that by opting to retain private petitioner and even promoting him despite his absence without leave, the University was exercising its freedom to choose who may teach or, more precisely, who may continue to teach in its faculty. Even in the light of the provision of the Revised Civil Service Law, the Respondent CSC had no authority to dictate to UP the outright dismissal of its personnel. The former could not have done so without trampling upon the latter's constitutionally enshrined academic freedom. Moreover, in Chang v. Civil Service Commission,21 the Court stressed that "[t]he CSC is not a co-manager, or surrogate administrator of government offices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their concordance with the requirements of the Civil Service Law." In short, on its own, the CSC does not have the power to terminate employment or to drop workers from the rolls.

Needless to say, UP definitely recognizes and values petitioner's academic expertise. As the vice chancellor for academic affairs explained, "[d]ropping him from the rolls will utterly be a waste of government funds and will not serve the best interest of the country which is suffering from 'brain-drain'." 22

Even UP President Emil Q. Javier advised Complainants Baskiñas and Medina to "give Dr. de Torres the opportunity to honor his service obligation to the University,"23 referring to petitioner's required return service in view of a fellowship abroad earlier granted him by the institution.

Consequently, there is no need for the issuance of a new appointment in favor of Dr. De Torres. His service in UP is deemed uninterrupted during his tenure at CIRDAP.

WHEREFORE, the Petition is hereby GRANTED. The assailed Decision of the Court of Appeals and the Respondent Civil Service Commission's Resolution Nos. 95-3045 and 96-1041 are SET ASIDE. No costs.

SO ORDERED.

APPOINTMENTS TO CIVIL SERVICE

ARTICLE IX – B SEC. 2 (2) CONSTITUTION

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

PAGCOR VS RILLORAZA

G.R. No. 141141      June 25, 2001

PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), petitioner, vs. CARLOS P. RILLORAZA, respondent.

DE LEON, JR., J.:

Before us is a petition for review on certiorari praying for the reversal of the Decision dated August 31, 19991 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803.

The facts are undisputed:

On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and loss of confidence, were brought against respondent Carlos P. Rilloraza, a casino operations manager of petitioner PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR). Respondent allegedly committed the following acts:

Summary description of charge(s):

Failure to prevent an irregularity and violations of casino and regulations committed by co-officers during his shift on October 9, 1997.

1. During his shift of 6:00 a.m.–2:00 p.m. on October 9, 1997, four (4) personal checks with a total value of Pesos: Five Million (P5,000,000) were issued by a small-time financier/player and were facilitated by a COM with the Treasury Division which enabled the small-time financier/player to withdraw and receive said amount. The facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or the Branch Manager for Operations (BMO) and the COM who facilitated the checks was not on duty then.

2. He even facilitated one (1) of the personal checks with a value of Pesos: Five Hundred Thousand (P500,000.00).

3. He failed to stop a top-ranking officer from placing bets over and above the allowable limit of P5,000.00 per deal, he failed to stop the same officer from playing in the big tables and lastly, he allowed the same officer to play beyond the allowable time limit of 6:00 a.m.

Respondent duly filed his answer during an investigation conducted by petitioner’s Corporate Investigation Unit. He narrated the events that transpired:

"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3. While inside the Area 3, GAM RENE QUITO approached me with a check worth P500,000.00 requested by a customer for endorsement to the Treasury. Since I’ve been out of Manila branch for 2 years and I’ve just been recalled to this branch for only more than 3 weeks, I’m not quite familiar with the systems and I don’t know this customer. I immediately approached COM CARLOS GONZALES, who at that time was still around, to verify regarding the said check and his immediate reply was "IT’S OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN’. In fact, I reconfirmed it again with COM GONZALES since he is more familiar

with the systems and customers, he answered me the same. So I gave the approval to GAM QUITO for endorsement. When I went in the office, I instructed OOS GILBERT CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call office "ASAP" because I wanted to relay this matter to them and there were no reply from both of them. I instructed OOS CABANA to send messages again to SBM & BMO, but still I received no reply. It was until after noontime that BMO CORDERO returned my call and I reported the incident to him. When I was at home at around 3:30 p.m. SBM ADVINCULA returned my call and I reported the incident. I also relayed the incident to SBM REYES.

While during my rounds, I went down to the New VIP area and there I saw BM SYHONGPAN sitting at TABLE #3(BB) and he was holding house cards at that time. I approached and stopped him but he reacted that the bet was not his but to a CUSTOMER’S. I took his words because as a subordinate, I respected him as one of our superior who very well know all our company’s policy esp. that an officer is not allowed to play at BIG table and are only allowed to bet with a maximum of P5,000.00 only. So I believe it was not his bet but the said customer. At that time there was no way for me to stop the game because I saw the said customer, named MS. CORAZON CASTILLO, whom I don’t know her [sic] since I was out of Manila Branch 2 years, and whom BM SYHONGPAN was referring to as the player, has a lot of chips worth about P7 Million in front of her and was betting P1.5M on the banker side which was over the maximum table limit by P500,000.00. I know we are allowed to authorize approval by raising the betting limits as per request of the playing customers.

After the game, the chips were encashed and I instructed GAM J. EUGENIO to accompany BM SYHONGPAN to his room because he was too drunk. When I was doing my rounds again, that’s how I found out from rumors within the gaming areas that this MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played [sic] in behalf of them the whole time. And I also learned that there were four checks endorsed during my shift which I facilitated only one check worth P500,000.00 after I verified and confirmed it with COM GONZALES. With regards to the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and COM GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room of BM SYHONGPAN he handed me some cash, which according to him, was given by BM SYHONGPAN as ‘BALATO’. I did not accept the money because at that moment I was so mad that they involved me beyond my innocence since I am new in the branch. I then instructed GAM EUGENIO to return the money to BM SYHONGPAN. (sic)

Finding Rilloraza’s explanation unsatisfactory, the PAGCOR Board handed down a Resolution on December 2, 1997 dismissing respondent and several others from PAGCOR, on the grounds of dishonesty, grave misconduct and/or conduct prejudicial to the best interest of the service and loss of confidence, effective December 5, 1997. The Board also denied respondent’s motion for reconsideration in a Resolution dated December 16, 1997.

Respondent appealed to the Civil Service Commission. On November 20, 1998, the Commission issued Resolution No. 983033,2 the dispositive portion of which provides, to wit:

WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon him the penalty of one month and one day suspension. The assailed Resolution of PAGCOR Board of Directors is thus modified.

The Commission denied petitioner’s motion for reconsideration in Resolution No. 990465 dated February 16, 1999.3

On appeal, the Court of Appeals affirmed the resolution of the Commission.4 The appellate court ordered petitioner to reinstate private respondent with payment of full backwages plus all tips, bonuses and other

benefits accruing to his position and those received by other casino operations managers for the period starting January 5, 1998 until his actual reinstatement. Petitioner filed a motion for reconsideration, 5 which was denied by the appellate court in the assailed resolution of November 29, 1999.6

Hence, the instant petition.

PAGCOR avers that:

I

THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF CONFIDENCE.

II

THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION.

The wellspring of stability in government service is the constitutional guarantee of entrance according to merit and fitness and security of tenure, viz:

xxx      xxx      xxx

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

(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.7

xxx      xxx      xxx

In the case at bar, we are basically asked to determine if there is sufficient cause to warrant the dismissal, not merely the suspension, of respondent who, petitioner maintains, occupies a primarily confidential position. In this connection, Section 16 of Presidential Decree No. 18698 provides:

Exemption.—All positions in the Corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors. All employees of the casinos and related services shall be classified as "Confidential" appointee.

Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily confidential employee. Hence, he holds office at the pleasure of the appointing power and may be removed upon the cessation of confidence in him by the latter. Such would not amount to a removal but only the expiration of his term. However, there should be no lingering doubt as to the true import of said Section 16 of P.D. No. 1869. We have already definitively settled the same issue in Civil Service Commission v. Salas,9 to wit:

In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution. This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987).

However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as ‘confidential’ appointees." While such executive declaration emanated merely from the provisions of Section 2, Rule XX of the Implementing Rules of the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the Administrative Code of 1987. This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and all-encompassing.

Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly, in the absence of such declaration, when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.

At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise.

When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." In the case of Piñero, et al. vs. Hechanova, et al., the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law, thus:

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

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

‘SENATOR TAÑADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not." xxx

Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. And the Court in the aforecited case explicitly decreed that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. In other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. [italics supplied]

The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines. It may well be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be determined as far as practicable by competitive examination." Let it be here emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified.1âwphi1.nêt

The question that may now be asked is whether the Piñero doctrine—to the effect that notwithstanding any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or highly technical—is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987, Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was deleted.

We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit:

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

FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring

that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term ‘highly technical’ means something beyond the ordinary requirements of the profession, it is always a question of fact.

MR. FOZ: Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld?

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

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

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

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

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

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

It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. [italics supplied]

In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position as primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." Accordingly, the Piñero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.

Justice Regalado’s incisive discourse yields three (3) important points: first, the classification of a particular position as primarily confidential, policy-determining or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position. Second, whether primarily confidential, policy-determining or highly technical, the exemption provided in the Charter pertains to exemption from competitive examination to determine merit and fitness to enter the civil service. Such employees are still protected by the mantle of security of tenure. Last, and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions within PAGCOR as primarily confidential, is not absolutely binding on the courts.

Considerations vary so as to make a position primarily confidential. Private secretaries are indisputably primarily confidential employees.10 Those tasked to provide personal security to certain public officials have also been deemed to hold primarily confidential positions11 for obvious reasons: the former literally are responsible for the life and well-being of the latter. Similar treatment was accorded to those occupying the posts of city legal officer12 and provincial attorney,13 inasmuch as the highly privileged nature of the lawyer-client relationship mandates that complete trust and confidence must exist betwixt them. National interest has also been adjudged a factor, such that the country’s permanent representative to the United Nations was deemed to hold her post at the pleasure of the Chief Executive.14

As casino operations manager, Rilloraza’s duties and responsibilities are:

JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the Operations Division of the branch. He reports directly to the Branch Manager or to the Branch Manager for Operations in Metro Manila branches.

DUTIES AND RESPONSIBILITIES:

1. Formulates marketing programs and plans of action for branch gaming operations in order to optimize revenue.

2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated human resource for effective and efficient branch gaming operations performance.

3. Takes measures to maintain and uphold the integrity of the casino games.

4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports, including income performance.

5. Submits periodic reports to the Branch Manager.

6. Directs the opening and closing of gaming table and slot machine areas.

7. Directs the setting-up, closure or suspension of operations of gaming tables and slot machine units when deemed necessary.

8. Controls the requisition, storage, and issuance of playing cards, gaming equipment and paraphernalia, operations keys, and accountable receipts and slips.

9. Ensures that gaming operations personnel adhere to the established House Rules, company policies and procedures.

10. Ensures that quality and efficient service is extended to casino patrons in accordance with the established House Rules, company policies and procedures.

11. Directs and controls all activities of the Card Shuffling Center and the Card Distribution Room.

12. Issues directives, memoranda, and other official communications on branch gaming operations matters.

13. Directs the daily and periodic performance evaluation of operations personnel.

14. Requires written statements from operations personnel regarding disputes, reported irregularities and violations of House Rules, company policies and procedures.

15. Issues or recommends disciplinary sanctions against delinquent operations personnel, as well as commendations to deserving ones.

16. Upon the Branch Manager’s approval, issues preventive suspension to erring employees pending investigation.

17. Effects immediate changes in House Rules when deemed necessary, subject to management review.

18. Approves table refill, chip yield, and dropbox yield transactions, as well as the payment for progressive link super jackpot awards.

19. Directs the cancellation of progressive link super jackpot combinations.

20. Signs chip checks in behalf of the Branch Manager.

21. Approves complimentary food and beverages to deserving players and evaluates the same for the possible extension of other amenities.

22. Settles disputes arising from gaming operations that have not been effectively settled by gaming managers and supervisors, and enforces decisions on the interpretation of House Rules, company policies, and procedures.

23. Recommends to the Branch Manager the banning of undesirable players.

24. Orders the removal of customers or employees from the table gaming (sic) and slot machine area for justifiable reasons.

25. Implements contingency plans in case of emergencies to ensure the security and safety of customers and staff.

26. Acts on customer complaints, suggestions, and observations.

27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad hoc committees of the Operations Division.

28. Represents the Operations Division in Branch Management panel meetings.

29. Apprises the Branch Manager of any incident of doubtful nature and of developments that require his immediate attention.

30. Performs other duties as may be designated by the Branch Manager.

Undoubtedly, respondent’s duties and responsibilities call for a great measure of both ability and dependability. They can hardly be characterized as routinary, for he is required to exercise supervisory, recommendatory and disciplinary powers with a wide latitude of authority. His duties differ markedly from those we previously ruled as not primarily confidential: for instance, PAGCOR’s Internal Security Staff;15

Management and Audit Analyst I of the Economic Intelligence and Investigation Bureau;16 a Special Assistant to the Governor of the Central Bank;17 the Legal Staff of the Provincial Attorney;18 members of the Customs Police;19 the Senior Executive Assistant, Clerk I, Supervising Clerk I and Stenographer;20

and a Provincial Administrator.21 In this sense, he is a tier above the ordinary rank-and-file in that his appointment to the position entails faith and confidence in his competence to perform his assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him by the appointing power so as to qualify his position as primarily confidential. Verily, we have observed that:

[i]ndeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle matters of similar nature. The Presiding and Associate Justices of the Court of Appeals sometimes investigate, by designation of the Supreme Court, administrative complaints against judges of first instance, which are confidential in nature. Officers of the Department of Justice, likewise, investigate charges against municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against members of the Bar. All of these are "confidential" matters, but such fact does not warrant the conclusion that the office or position of all government physicians and all Judges, as well as the aforementioned assistant solicitors and officers of the Department of Justice are primarily confidential in character.22

We further note that a casino operations manager reports directly to the Branch Manager or, in Metro Manila branches, to the Branch Manager for Operations. It does not appear from the record to whom the Branch Manager (or the Branch Manager for Operations, as the case may be) reports. It becomes unmistakable, though, that the stratum separating the casino operations manager from reporting directly to the higher echelons renders remote the proposition of proximity between respondent and the appointing power. There is no showing of that element of trust indicative of a primarily confidential position, as we defined it in De los Santos v. Mallare,23 to wit:

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.

Necessarily, the point of contention now is whether there was cause for the respondent’s separation from the service. On this point, having analyzed both parties’ arguments, we find that the Civil Service Commission did not err in declaring that Rilloraza was liable only for simple neglect of duty. In the first place, there is no evidence to sustain a charge of dishonesty. As the latter term is understood, it implies a:

Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.24

In the case at bar, respondent’s explanation fails to evince an inclination to lie or deceive, or that he is entirely lacking the trait of straightforwardness. We concur with the appellate court’s finding, thus:

Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan explained that he was merely playing for a customer, Ms. Corazon Castillo who was seated also at the table. After observing the large number of chips in front of Ms. Castillo estimated at around P7M, respondent

became convinced of the clarification given by Branch Manager Syhongpan and he must have relied also on the word of said top ranking PAGCOR official whose representation must ordinarily be accepted and accorded respect and credence by a subordinate like him. xxx

More importantly, the PAGCOR Adjudication Committee concluded that respondent actually attempted to stop the game where Syhongpan was playing which was even utilized as basis by the PAGCOR Board in dismissing respondent. xxx

xxx      xxx      xxx      xxx

The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the allowable limit of P5,000.00 per deal is not anchored on a correct premise. Respondent Rilloraza has steadfastly maintained that he is of the belief that BM Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan is merely acting for the real casino player, then the policy of not allowing any PAGCOR official to bet beyond P5,000.00 has no application. Respondent Rilloraza believed in good faith that the bet was not BM Syhongpan’s but of Ms. Castillo and should not be unduly punished for his honest belief. The same reason exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is non sequitur since Rilloraza never entertained the idea that Syhongpan was the gambler.

Lastly, if only to consummate respondent’s alleged dishonesty and grave misconduct by corruptly profiting from said incident, he could have easily pocketed the ‘balato’ given by Syhongpan, but he never did, and in fact, returned the money. xxx

xxx      xxx      xxx      xxx

On the facilitation of the swap of a P500,000.00 personal check for chips, this Court, after considering the parties involved and the circumstances of the case, believes that respondent Rilloraza has judiciously performed all the acts necessary to protect the interests of PAGCOR and has acted as a prudent and reasonable man. It is evident that respondent had the authority to approve the exchange of checks for gambling chips. In the exercise of such discretion, We find that the approval by Rilloraza of the exchange was done with caution and circumspect [sic]. When he was approached by GAM Quito for endorsement of said personal checks per request of a customer, he immediately approached COM Gonzales to verify the check who assured him that the check was good and in fact guaranteed by Mr. Syhongpan, Davao City Branch Manager of PAGCOR. To be sure, he even reconfirmed the same with Gonzales as he is more familiar with the systems and the customers since he has been recalled to the branch for only three (3) weeks. After approving the endorsement, he immediately tried to contact SBM Advincula and BMO Cordero, to notify them of his action but none of them called back. In the afternoon, both returned the call and were informed by respondent of the exchange of the chips for the check and presumably, the former ratified or acquiesced to the action of respondent since there was no objection or complaint about the matter. xxx

These same findings negate the conclusion that respondent is guilty of misconduct or conduct prejudicial to the best interest of the service. In Manuel v. Calimag, Jr.,25 we defined misconduct, thus:

Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer x x x. It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct relation to and be connected with the performance of official duties

amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office x x x.

Differently propounded in Canson v. Garchitorena, et al.,26 misconduct is "any unlawful conduct on the part of a person concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause. It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent. On the other hand, the term ‘gross’ connotes something ‘out of all measure; beyond allowance; not to be excused; flagrant; shameful’." From the facts given, absent is that element of intent to do wrong against petitioner.

CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less grave offense punishable as a first offense by suspension of one (1) month and one (1) day to six (6) months. 27

In the imposition of the proper penalty, Section 54 thereof provides, as follows: (a) the minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present; (b) the medium of the penalty shall be imposed where no mitigating and aggravating circumstances are present; and (c) the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. In turn, the circumstances that may be properly considered are:

Section 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. – In the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered.1âwphi1.nêt

The following circumstances shall be appreciated:

a. Physical illness

b. Good faith

c. Taking undue advantage of official position

d. Taking undue advantage of subordinate

e. Undue disclosure of confidential information

f. Use of government property in the commission of the offense

g. Habituality

h. Offense is committed during office hours and within the premises of the office or building

i. Employment of fraudulent means to commit or conceal the offense

j. Length of service in the government

k. Education, or

l. Other analogous circumstances

Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, said circumstances shall not be considered in the imposition of the proper

penalty. The Commission, however, in the interest of substantial justice may take and consider these circumstances.

We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly attributed good faith on the part of respondent. Accordingly, the modified penalty imposed by the Civil Service Commission on the respondent which was affirmed by the Court of Appeals, was proper under the premises.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August 31, 1999 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.

SO ORDERED.

POLICY DETRMINING

PRIMARY CONFIDENTIAL

DELOS SANTOS VS MALLARE

G.R. No. L-3881             August 31, 1950

EDUARDO DE LOS SANTOS, petitioner, vs. GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USON, in his capacity as City Auditor, respondents.

TUASON, J.:

This is an original action of quo warranto questioning the legality of the appointment of respondent Gil R. Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. The real issue however is the legality of the petitioner's removal from the same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is the petitioner's contention that under the Constitution he can not be removed against his will and without cause. The complaint against the other respondents has to do merely with their recognition of Mallare as the lawful holder of the disputed office and is entirely dependent upon the result of the basic action against the last-mentioned respondent (Mallare).

Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings.

The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law."

It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified service." And this Court, in an exhaustive opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled that officers or employees in the

unclassified as well as those in the classified service are protected by the above-cited provision of the organic law. But there is this difference between the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the President) to remove at pleasure any of the officers enumerated therein, one of whom is the city engineer. The first question that presents itself is, is this provision still in force?

Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, . . . ."

It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code, he (Governor-General now President) may remove at pleasure any of the said appointive officers," is incompatible with the constitutional inhibition that "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." The two provisions are mutually repugnant and absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits.

The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested that the President's pleasure is itself a cause. The phrase "for cause" in connection with the removals of public officers has acquired a well-defined concept. "It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."(43 Am. Jur., 47, 48.)

Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service are concerned is urged. It is contended that only officers and employees in the classified service should be brought within the purview of Article XII of the Constitution.

Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the Government shall be provided by law. Appointments in the Civil Service, except as those which are policy-determining, primarily confidential or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." The first clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service is contemplated, except positions "which are policy-determining, primarily confidential or highly technical in nature." This theory is confirmed by the enactment of Commonwealth Act No. 177 on November 30, 1936 to implement Article XII of the Constitution. Commonwealth Act No. 177 explains Civil Service almost in the identical words of that article of the organic law. As a contemporaneous construction, this Act affords an index to the meaning of Civil Service as conceived by the framers of the Constitution. "The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight." (U.S. vs. Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem. Murray vs. Hoboken Land and Improv. Co., 18 How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur. 699.) The principle of express mention and implied exclusion may be made use of also to drive home this point.

We are led to the same conclusion by the existing provisions at the time of the adoption of the Constitution. Civil Service as embracing both classes of officers and employees possessed definite legal and statutory meaning when the Constitution was approved. Section 670 of the Revised Administrative Code already provided that "Persons in the Philippine civil service pertain either to the classified service," and went on to say that "The classified service embraces all not expressly declared to be in the unclassified service." Then section 671 described persons in the unclassified service as "officers, other than the provincial treasurers and assistant directors of bureaus or offices, appointed by the President of

the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the government whose appointments are by law vested in the President of the Philippines alone."

The rules of the construction inform us that the words use in the constitution are to be given the sense they have in common use. (Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R., 1434; 73 Law ed., 894.) It has been said that we must look to the history of the times, examine the state of things existing when the Constitution was framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233), and interpret it in the light of the law then in operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.)

Attention is drawn to supposed inconveniences of tying the hands of the appointing power in changing and shifting officers in the unclassified service. "If — it is argued — all important officers and employees of the government falling within the unclassified service as enumerated in section 671 of the Revised Administrative Code as amended by Commonwealth Act No. 177, may not be removed by the President except for cause as provided by law, . . . the President would be seriously crippled in the discharge of the grave duty and responsibility laid upon him by the Constitution to take care that the laws faithfully executed."

Questions of expediency are, of course, beyond the province of the court to take into account in the interpretation of laws or of the Constitution where the language is otherwise clear. But the argument is, we think, unsound even if the case be approached from this angle. It contains its own refutation. The Constitution and the law implementing it afford adequate safeguards against such consequences as have been painted.

The argument proceeds, contrary to its context, on the assumption that removes of civil service officers and employees are absolutely prohibited, which is not the case. The Constitution authorizes removals and only requires that they be for cause. And the occasions for removal would be greatly diminished if the injunction of section 1 of Article XII of the Constitution — that appointments in the civil service shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination — would be adhered of meticulously in the first place.

By far greater mischiefs would be fomented by an unbridled authority to remove. Such license would thwart the very aims of the Constitution which are expounded by Dean Aruego, himself a member of the Constitutional Convention, in the following remarks copied with approval in Lacson vs. Romero, supra:

The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service.

The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1879 by the Constitutional right of President of the United States to act alone in the matter of removals. From the time of Andrew Jackson the principle of the "To the victor belongs the spoils' dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency.

Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurmann Commission advocated in its reports that "the greatest care should be taken in the selection of the officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." The fifth act passed by the Philippine Commission created a Board of Civil Service.

It instituted a system here that was far more radical and thorough than that in the United States. The Governor-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud.

Necessity for Constitutional provision. — The inclusion in the constitution of provisions regarding the "merit system" is a necessity of modern times. As its establishment secures good government the citizens have a right to accept its guarantee as a permanent institution.

Separation, suspension, demotions and transfers. — The "merit system" will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law. This means that there should be bona fide reasons and action maybe taken only after the employee shall have been given a fair hearing. This affords the public employees reasonable security of tenure. (II Aruego's Framing of the Constitution, 886, 887, 890.)

As has been seen, three specified classes of positions — policy-determining, primarily confidential and highly technical — are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category determinable at the will of the officer that makes them.

The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability.

Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc," and warns that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court." The question arises as to whether this judgment operates as invalidation of section 2545 of the Revised Administrative Code or a part of it so as to need at least eight votes to make effective. The answer should be in negative.

We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional. What we declare is that the particular provision thereof which gave the Chief Executive power to remove officers at pleasure has been repealed by the Constitution and ceased to be operative from the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and vigor, and unconstitutional legislation presupposes posteriority in point of time to the Constitution. It is a statute that "attempts to validate and legalize a course of conduct the effect of which the Constitution specifically

forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in the nature of things, contravene or pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before this petitioner was appointed.

Incidentally, the last discussion answers and disposes of the proposition that in accepting appointment under section 2545 of the Revised Administrative Code, the petitioner must be deemed to have accepted the conditions and limitations attached to the appointment. If the clause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated when petitioner's appointment was issued, the appointee can not presumed to have abided by this condition.

We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed for cause, and that respondent Mallare's appointment is ineffective in so far as it may adversely affect those emoluments, rights and privileges. Without costs.

Separate Opinions

BENGZON, J., concurring:

I concur in the result solely upon the ground that section 2545 of the Baguio Charter (Administrative Code) empowering the President to remove the City Engineer at pleasure has been impliedly repealed by section 22 of Commonwealth Act No. 177 which expressly provides for the first time (following the mandate of the Constitution),that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law."

I must decline to go into the matter of alleged conflict with the Constitution, first, because plaintiff is precluded from raising that question (Zandueta vs. De la Costa, 66 Phil., 615); second, because every law is presumed to be constitutional unless eight Justices of this Court are clearly of a contrary opinion, 1

and third, because that subject need not be inquired into, except when absolutely necessary for the disposition of the controversy.

REYES, J.:

I concur in this opinion of Mr. Justice Bengzon.

BORRES VS CA

G.R. No. L-36845 August 21, 1987

CITY MAYOR EULOGIO E. BORRES, CITY OF CEBU, CITY COUNCIL OF CEBU, CEBU CITY TREASURER and CEBU CITY AUDITOR, petitioners, vs. COURT OF APPEALS, GERMAN O. LUMAPAC and BARTOLOME ELIZONDO, respondents.

PADILLA, J.:

Petition for review on certiorari of the decision 1 of the Court of Appeals, dated 12 April 1973, in CA-G.R. No. 48700-R which affirmed the decision of the Court of First Instance of Cebu in Civil Case No. R-10848

Private respondents German 0. Lumapac and Bartolome Elizondo were appointed by the then Mayor of Cebu City, Carlos J. Cuison as Senior Security and Security Guard, respectively, in the Office of the Vice-Mayor, as recommended by then Vice-Mayor of Cebu City, Luis V. Diores. In the 1967 local elections, Sergio Osmena, Jr. and petitioner Eulogio Borres ran and won as Mayor and Vice-Mayor, respectively, of Cebu City. Osmena, Jr., however, did not assume office; hence petitioner Borres became the Acting Mayor of Cebu City. Upon assuming office, or on 3 January 1968, petitioner Borres terminated the services of private respondents "due to lack of confidence."

On 9 October 1968, private respondents German 0. Lumapac and Bartolome Elizondo, together with Vicente Lao, filed with the Court of First Instance of Cebu, Branch III, a petition for mandamus with damages against petitioners, docketed therein as Civil Case No. R-10848 and praying among others that judgment be rendered (a) declaring their removal unlawful and void; (b) ordering their reinstatement to their former positions, with right to receive back salaries from the date of removal up to actual reinstatement; (c) directing payment of moral and exemplary damages plus attorney's fees and litigation expenses in the sum of P2,500.00; and (d) adjudging costs against City Mayor Eulogio E. Borres. 2

In due course, petitioners filed their answer, admitting some allegations and denying other allegations of the petition, and setting forth special and affirmative defenses. 3

After several postponements, pre-trial was held on 22 December 1969, after which, the parties submitted the following:

STIPULATION OF FACTS

COME NOW the parties in the above-entitled case, by their undersigned counsels and to this Honorable Court, respectfully submit the following agreed statement of facts:

1. Petitioner German O. Lumapac started service in the City of Cebu on December 16, 1959, occupying various positions of Informer, Laborer and Special Agent. Effective July 1, 1963, he was appointed Senior Security, Office of the Mayor, as shown in his appointment (Annex A). Effective July 1, 1965, he was extended an appointment (Annex B) as Senior Security, Office of the Vice-Mayor, at P2,160.00 per annum which was later superseded by another appointment (Annex C) with an increased salary of P3,060.00. The provisional status of his appointment was changed to permanent at the same rate as shown in his appointment, effective November 16, 1966 (Annex D), which was his last appointment prior to the termination of his services.

2. Petitioner Vicente Lao started service in the City of Cebu on October 1, 1961, as Confidential Agent, Division of Inspection, Office of the Mayor at P1,800.00 per annum.

His last appointment, prior to the termination of his services, is to the position of Confidential Agent, Inspection Division, Office of the Mayor, effective January 1,1966 at P4,020.00 per annum (Annex E).

3. Petitioner Bartolome Elizondo started service in the City of Cebu on January 2, 1964, as Security Guard, Office of the Vice-Mayor, at P1,560.00 per annum (Annex E). His next and last appointment for salary adjustment, prior to the termination of his services, is as Security Guard, Office of the Vice-Mayor, at P2,160.00 per annum (Annex G).

4. Petitioner German 0. Lumapac is a civil service (Testimonial) eligible (Security Guard) since December 31, 1964, as shown in the attached copy of Notice of Eligibility (Annex H).

5. The duties of Security Guard held by petitioner Bartolome Elizondo, a non-eligible, as well as those of Senior Security held by petitioner German Lumapac, are shown in their respective C.S. Form 9-A (revised 1963), xerox copies of which are hereto attached and marked as Annexes "1" and "2".

6. On January 3, 1968, petitioners' services were terminated effective upon their receipt on said date of letters of termination (Annex 1, 1-1, 1-2) from respondent City Mayor. At the time of their termination, petitioners were members of the GSIS and had the following efficiency ratings: German Lumapac, 89%; Vicente Lao, 88%; and Bartolome Elizondo, 86%.

7. After the termination of their services, the positions of petitioners German Lumapac, Vicente Lao and Bartolome Elizondo were filled up by Eduardo Evangelista, Vicente Resales and Simplicio Alpuerto, respectively, all non-eligibles, by appointments issued by the respondent City Mayor Borres.

8. After the termination of their services, petitioners sent petitions (Annexes J and K) to the Commissioner of Civil Service, through the Regional Director, Civil Service Commission, Regional Office No. 5, Cebu City, asking for the annulment of their termination and their consequent reinstatement. The petition of Vicente Lao and Bartolome Elizondo was referred by lst Indorsement, dated March 6, 1968 (Annex L) to the respondent Mayor Borres, by the Regional Director of the Civil Service Commission, Cebu City, but until now no answer or action was taken by said respondent. By a 5th Indorsement, dated February 2, 1968 (Annex M), the Regional Director, Civil Service Commission, Regional Office No. 5, Cebu City, forwarded to the Commissioner of Civil Service, Manila, petitioner German Lumapac's above-mentioned petition for reinstatement. Despite the aforementioned petitions, no definite action has been taken by the Commissioner of Civil Service until the filing of this case and even until this date.

The parties reserve their right to introduce evidence on matter not covered by the foregoing Stipulation of Facts. 4

After trial, the court a quo, Hon. Mateo Canonoy presiding, rendered a decision, 5 the dispositive portion of which reads as follows:

IN VIEW OF THE FOREGOING, judgment is hereby rendered, declaring the dismissals of German 0. Lumapac and Bartolome Elizondo on January 3, 1968 illegal and hereby orders the respondent City Mayor to reinstate them immediately; declaring the said German O. Lumapac and Bartolome Elizondo entitled to their backsalaries as Senior Security Guard and Security Guard respectively from January 3, 1968 until their

reinstatement; and condemning the City of Cebu to pay their back-salaries at the rate of P3,060.00 and P2,160.00 per annum respectively and one thousand pesos as attorney's fees and the costs of this action.

The petition as to Vicente Lao is hereby dismissed.

IT IS SO ORDERED. 6

Vicente Lao, as well as petitioners herein, moved to reconsider the aforesaid decision of the trial court. Their respective motions for reconsideration 7 were denied. 8

Dissatisfied, Vicente Lao and herein petitioners appealed to the Court of Appeals, docketed therein as CA-G.R. No. 48700-R On 11 April 1973, said appellate court promulgated a decision 9 affirming that of the trial court. It ruled, among others, as follows:

... It is well settled that an employee or officer in the Civil Service who is holding a primarily confidential position with a permanent status is within the protection of Section 4, Article XII of the old Constitution which provides:

No officer or employee in the Civil Service shall be removed except for cause as provided by law.

In the case of Gray vs. de Vera, 28 SCRA 268 (L-23966, May 22, 1969) the Supreme Court ruled that:

a position declared primarily confidential comes within the purview of Section 4, Article XII of the Constitution. The permanent incumbent thereof can only be removed or suspended for cause as provided by law.

There can be no dispute that the petitioners Lumapac, Elizondo and Lao are holding positions which are primarily confidential in nature. But are their appointments permanent? With respect to petitioners German D. Lumapac and Bartolome Elizondo the records show that their appointments are permanent, that of Vicente Lao is temporary. In the same case of Gray vs. De Vera, the Supreme Court ruled that the petitioner was entitled to a hearing and an opportunity to defend himself so that his summary dismissal is illegal and was entitled to his reinstatement. The Supreme Court in said case said:

... although the President, in Executive Order No. 399, declared the position of secretary to the board of a government corporation "primarily confidential in nature" it does not follow that a board secretary whose appointment was permanent may be removed from office without a formal charge specifying the ground for removal and without giving him an opportunity of being heard. A position declared primarily confidential comes within the purview of Section 4, Article XII of the Constitution with respect to removal of a permanent incumbent thereof.

xxx xxx xxx

.... In the present case, the petitioners German O. Lumapac and Bartolome Elizondo were dismissed summarily without the benefit of a hearing. Even assuming that when the officer holds a primarily confidential position, he can be removed for lack of confidence, still we believe that before he is actually removed he should at least be entitled to know the reason why he is being removed. Otherwise he win not be able to determine whether he is being removed for cause or not. A court note from the respondent to the effect that

his services is terminated without giving him a chance to know why and to be heard is offensive to the foregoing Constitutional precent.

xxx xxx xxx

.... One reason given by the respondent Mayor in removing petitioners is that their term of office are co-terminus with the term of the public officials they are supposed to serve and therefore he can separate them from the service any time upon the termination of office of the public officials to whom they are rendering their services. We cannot subscribe to this argument. By virtue of their appointment the petitioners are clearly assigned to the Office of the Vice-Mayor and not to the particular officers. The office is permanent but the officers' stay in office is not. So long as the Office of the Vice-Mayor exists whoever may be the occupant of the office, the petitioners are under obligation to discharge their duties until their services are lawfully terminated. In other words, the right of the petitioners to stay in their position is co-terminus with the Office of the Vice- Mayor and not with the term of any specified incumbent of the office. Respondent Mayor has admitted that the appointments of petitioners German O. Lumapac and Bartolome Eliondo are permanent, although he contends that they are permanent only as noted in their respective appointment papers. If their appointments are permanent as noted in their appointments then definitely they enjoy a permanent status for what characterizes an appointment is the nature of the appointment extended. (Villanosa vs. Alera, L-10586, May 29, 1967). The very nature of their appointments are reflected in the appointment papers themselves.

Respondent Mayor claims that the lower court erred in not finding that petitioners have failed to exhaust administrative remedies before filing the present action. He contends that under Section 16, paragraph ( j ) of the Civil Service Act of 1959 is within the power of the Commissioner to hear and determine Appeals by a person aggrieved by an action or determination of any appointing authority contrary to the provisions of the Civil Service Law and Rules and therefore petitioners should have taken their case to the Commissioner of Civil Service and waited for his decision on the matter. He insists that failure of petitioners to pursue such remedy provided by the Civil Service Act is fatal to their claims. Paragraph 8 of the Stipulation of Facts seems to belie the charge of respondent that petitioners failed to exhaust their administrative remedies. Said paragraph provides:

after the termination of their services, petitioners sent petitions (Annexes J and K) to the Commissioner of Civil Service, through the Regional Director, Civil Service Commission Regional Office No. 5, Cebu City, asking for the annulment of their termination and their consequent reinstatement. The petition of Vicente Lao and Bartolome Elizondo was referred as lst Indorsement, dated March 6, 1968 (Annex L) to respondent Mayor Borres by the Regional Director of the Civil Service Commission Cebu City, but until now no answer or action was taken by said respondent. By a 5th Indorsement, dated February 2, 1968 (Annex M), the Regional Director, Civil Service Commission, Regional Office No. 5, Cebu City, forwarded to the Commissioner of Civil Service, Manila, petitioner German Lumapac's above-mentioned petition for reinstatement. Despite the aforementioned petitions, no definite action has been taken by the Commissioner of Civil Service until the filing of this case and even until this date.

From the foregoing it is clear that the petitioners have tried to resort to the principle of exhaustion of administrative remedies but that the Commissioner of Civil Service did not seem to have any definite action on the matter. In such an event the only thing left to the

petitioners is to go to Court for relief. One of the recognized exceptions to the principle of exhaustion of administrative remedies is when it is absolutely futile to resort to such remedies, as when the administrative body does not want to act or delays action on the problem on hand. Besides, the principle of exhaustion of administrative remedies does not apply and the aggrieved party can immediately go to court for relief when the action of the administrative body or officer is manifestly illegal or where the administrative body or office concerned has acted without any lawful authority, as in the present case. (Azur vs. Provincial Board, 27 SCRA 50; Mitra vs. Subido, 21 SCRA 127).

As a consequence of the above decision of the Court of Appeals, herein petitioners interposed the present petition for review on certiorari, claiming that the Court of Appeals erred: (1) in finding that the appointments of German O. Lumapac and Bartolome Elizondo are permanent; (2) in declaring that they were illegally dismissed; (3) in not finding that private respondents have not exhausted administrative remedies before filing the action for mandamus; and (4) in affirming in toto the decision of the trial court.

The principal issue to be resolved is whether or not private respondents German 0. Lumapac and Bartolome Elizondo may be dismissed, without cause or hearing, on the mere ground of lack of confidence.

Petitioners maintain the affirmative. They claim that both the trial court and the Court of Appeals erred in applying the rule laid down in Gray vs. De Vera. 10 In said case, Benjamin A. Gray was appointed Secretary to the Board of Directors of the People's Homesite and Housing Corporation (PHHC). On 12 January 1959, he sent a telegram to then President Carlos P. Garcia suggesting a complete revamp of the Board of Directors of the PHHC due to the Board's acts of mismanagement and misconduct. On the following day, the PHHC Board of Directors passed Resolution No. 331 terminating his services on account of loss of confidence due to treachery or disloyalty to the Board. Gray filed in the Court of First Instance of Rizal an action for quo warranto. After trial, the court rendered a decision upholding the validity of Resolution No. 331 on the ground that the sending of the telegram to President Garcia was an act of treachery or disloyalty to the Board of Director and constituted cause for his removal from office at any time, considering that the position of Board Secretary was primarily confidential in nature. On appeal, this Court in setting aside the decision of the court a quo held, among others, that.

... Although the President, in Executive Order No. 399, declared the position of secretary to the board of a government corporation "primarily confidential in nature," it does not follow that a board secretary whose appointment was permanent may be removed from office without a formal charge specifying the ground for removal and without giving him an opportunity of being heard. A position declared primarily confidential comes within the purview of Section 4, Article XII of the Constitution with respect to removal of the permanent incumbent thereof. ...

xxx xxx xxx

The removal of Board Secretary Gray from the primarily confidential position to which he had been permanently appointed was illegal in view of the following considerations:

(1) There was no lawful cause for removal. The sending of the telegram of January 12, 1959 to President Garcia suggesting a complete revamp of the Board of Directors of the PHHC due to the Board's acts of mismanagement and misconduct, the most serious of which was that the directors were grabbing as "quotas dwelling awards inspite applicants of long standing," was an act of civic duty. The telegram was a privileged communication presumably made in good faith and capable of being substantiated by evidence.

According to the testimony of Director Manuel T. Leelin, the act of Board Secretary Gray in sending the telegram of January 12, 1959 to the President of the Philippines was an act of treachery or disloyalty to the Board.

xxx xxx xxx

We cannot agree, for the following reasons:

First. As pointed out, the sending of the telegram to the President of the Philippines was an act of civic duty. The telegram was a privileged communication presumably sent in good faith and capable of being proved by evidence.

Second. The position of secretary to the board of a government corporation was declared by the President in Executive Order No. 399 primarily confidential in nature with the obvious intent that the position be filled by an appointee of unquestioned honesty and integrity. Hence, the act of Board Secretary Gray in reporting to the President of the Board's acts of mismanagement and misconduct was in consonance with the honesty and integrity required for the position.

Assuming that Gray owed loyalty to the Board, that loyalty was in the interest of good government and not in the personal interest of the directors to the extent of concealing the shenanigans of the Board. ... .

If the charges of mismanagement and misconduct contained in the telegram were false, the Board of Directors should have required Board Secretary Gray to show cause why he should not be removed from office for making such false charges. The Board Secretary would have been given an opportunity of being heard. If unable to substantiate his charges, the Board could have made a finding to that effect and remove Board Secretary Gray from office for serious misconduct (not for treachery or disloyalty to the Board).

(2) Assuming, arguendo, that appellant's telegram to President Garcia constituted lawful cause for his removal from office, the fact remains that he was summarily removed one day after he had sent the telegram, and that no formal charge was filed against him stating the ground for removal and giving him an opportunity of being heard. He was, thus, removed from office without due process of law, in view of which his removal was illegal.

Petitioners contend however that there is no parallelism between the Gray case and the case at bar. They claim that the removal of Gray as PHHC board secretary was declared illegal because of some attendant vital considerations in said case, not present in the case at bar. In other words, petitioners contend that the present case is not "on all fours" with the Gray case. Thus, they argue that the loyalty of Gray was to the Board, in the interest of good government, and not, in the personal interest of the members of the Board of Directors, and that the relationship between Gray and the PHHC Board of Directors and the relationship between private respondents and the Vice-Mayor of Cebu City are totally different, for the latter denotes a very close personal relation by reason of the nature of the duties and functions of a Security Officer and Security Guard, while the former does not.

There are two (2) instances when a position may be considered primarily confidential: (1) when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; or (2) in the absence of such declaration, when by the nature of the functions of the office, there exists close intimacy between the appointee and the appointing power, which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayals of personal trust or confidential matters of state. 11 However, upon the enactment of the 1959 Civil Service Act (RA 2260), it is the nature of the position which finally determines whether a position is primarily confidential. Executive

pronouncements can be no more than initial determinations that are not conclusive in case of conflict. 12 Thus, Section 5 of the 1959 Civil Service Act (RA 2260) provides, as follows:

SEC. 5. The Non-competitive Service. — The non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy determining, primarily confidential or highly technical in nature. (Emphasis ours)

In the Gray case, Executive Order No. 399 which declared the position of secretary to the Board of Director of a government corporation "primarily confidential in nature" was issued on 5 January 1951, i.e., before the enactment of the 1959 Civil Service Act (RA 2260). As held by this Court in said Gray case, "(t)he position of secretary to the board of a government corporation was declared by the President in Executive Order No. 399 primarily confidential with the obvious intent that the position be filled by an appointee of unquestioned honesty and integrity" and that the "act of Board Secretary Gray in reporting to the President the Board's acts of mismanagement and misconduct was in consonance with the honesty and integrity required of the position." In other words, "honesty" and "integrity," were the primary considerations for appointment to the position of board secretary of a government corporation. The position did not, however, involve "such close intimacy" between the board secretary and the Board of Directors of the PHHC, as would insure "freedom from misgivings of betrayals of personal trust."

In the present case, the positions of Senior Security and Security Guard in the Office of the Vice-Mayor of Cebu City, are primarily confidential in nature because of the duties and functions attached to said positions. In his request for certification for eligibility as Senior Security, private respondent German O. Lumapac enumerated his duties, as follows: (1) to give adequate protection for the Vice-Mayor's safety; (2) to accompany the Vice-Mayor in all his appointments; and (3) to perform other duties assigned to him by the Vice-Mayor from time to time.13 On the other hand, as Security Guard, private respondent Bartolome Elizondo performs the following duties: (1) to act as bodyguard of the person of the Vice-Mayor; (2) to prepare security measures for the safety of the Vice-Mayor; and (3) to perform other duties which the Vice-Mayor may assign to him from time to time.14 By virtue of the nature of the duties and functions attached to said positions, the relationship between the Vice-Mayor and his Security is one that depends on the highest degree of trust and confidence, such that trust and confidence are the primary reasons for appointment thereto. As a matter of fact, private respondents were appointed to said positions upon the recommendation of the then Vice-Mayor Luis V. Diores. Petitioner Borres should not be deprived of the right to choose his own men to act as his Security.

In the light of the foregoing, the Court holds that the rule laid down in Gray vs. De Vera is not applicable to the factual environment of the present case.

The tenure of personnel holding primarily confidential positions, such as the respondents, ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, thus, their cessation involves no removal. 15 In Salazar vs. Mathay 16 where the petitioner therein was appointed to the position of Confidential Agent in the Office of the Auditor, GSIS, which position was likewise declared as primarily confidential under Executive Order No. 265, this Court in upholding her termination held:

.... Her position being primarily confidential, petitioner cannot complain that the termination of her services as confidential agent in the Office of the Auditor, GSIS is in violation of her security of tenure. In the case of Delos Santos vs. Mallare, supra, primarily confidential positions are excluded from the merit system, and dismissal at pleasure of officers or employees therein is allowed by the Constitution, although in Ingles vs. Mutuc 17 this assumption was held to be inaccurate. According to the Court, the proper expression to be used is that the term of the incumbent merely expires. Thus in said case, the Court held:

This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of the appointing power. It should be noted, however, that when such pleasure turns into displeasure, the incumbent is not "removed" or "dismissed" from office-his "term" merely "expires" in much the same way as an officer, whose right thereto ceases upon the expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed "removed" or "dismissed" therefrom, upon the expiration of said term. The main difference between the former — the primarily confidential officer — and the latter is that the latter's term is fixed or definite, whereas the former is not prefixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not "removed" or "dismissed" from office-his term has merely "expired.

Accordingly, it can be said that petitioner was not removed from her office as confidential agent in the office of the Auditor, GSIS, but that her term to said position has already expired when the appointing power terminated her services.

Similarly, in the case at bar, it may also be said, with equal vigor, that when petitioner Eulogio Borres, terminated the services of private respondents "due to lack of confidence," they were not "removed" or "dismissed" from the service; their "term" in their respective positions merely "expired." Hence, they were not illegally "removed" or "dismissed" from the service.

Having arrived at the above conclusion, we do not find it necessary to discuss the other issues raised in the petition.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals, dated 12 April 1973, is hereby REVERSED and SET ASIDE. Without costs.

SO ORDERED.

HIGHLY TECHNICAL

BESA VS PNB

G.R. No. L-26838 May 29, 1970

TOMAS BESA, petitioner, vs. PHILIPPINE NATIONAL BANK; HON. ROBERTO S. BENEDICTO, President of the Philippine National Bank; THE BOARD OF DIRECTORS, Philippine National Bank; HON. ANTONIO M. DIAZ, BIENVENIDO M. JUAT, SIMEON G. MIRANDA, JUAN PONCE ENRILE, ISMAEL M. REINOSO, and JUAN TRIVINO, Members of the Board of Directors of the Philippine National Bank; and HON. CONRADO E. MEDINA, Actg. Asst. Vice-President, In-charge of the Loans Adjustment Dept., respondents.

FERNANDO, J.:

The constitutional safeguard against removal from office except for cause is invoked by petitioner Tomas Besa in this proceeding for certiorari, prohibition and quo warranto. 1 Appointed Chief Legal Counsel with the rank of Vice-President of respondent Philippine National Bank in 1962, he was shifted by virtue of a resolution of respondent Bank on October 19, 1966, to the office of its President, respondent Roberto S. Benedicto, as Consultant on Legal Matters, 2 with respondent Conrado E. Medina being assigned to his position. While petitioner would seek to nullify the above resolution and enjoin its enforcement, his action is essentially one of quo warranto. Its success is thus dependent on his being able to sustain the burden of demonstrating that what was done by respondent Bank, through its Board of Directors, all of whom were likewise named respondents, could in law be characterized as removal without cause contrary to the explicit mandate of the Constitution. That he was not able to do. The petition must fail.

There is no dispute as to the facts. Petitioner was appointed on July 12, 1962 as Chief Legal Counsel of respondent Bank with the rank of Vice-President. On October 20, 1966, a letter-directive was issued by the then President of the Bank, respondent Benedicto, that he was transferred to his office as Consultant on Legal Matters. The justification for such a move was Resolution No. 1053 of respondent Board of Directors of the Bank, wherein it was expressly stated "that Vice President Tomas Besa be shifted to the Office of the President as Consultant on Legal Matters, without change in salary and other privileges."

Thereafter, on October 24, 1966, petitioner, in a letter addressed to the respondent Board of Directors and respondent President Benedicto, sought a reconsideration of the action above taken. Under date of October 27, 1966, the Secretary of respondent Board of Directors advised petitioner of the denial of his motion for reconsideration. In the aforesaid letter-directive of October 20, 1966, respondent Conrado E. Medina was designated Vice-President and Chief Legal Counsel effective as of that day.

In its answer, respondents admitted the above facts and stressed that respondent Medina far from usurping the position of petitioner "is Vice President and Chief Legal Counsel of the respondent Bank who has assumed office and discharged the duties thereof starting October 20, 1966 by virtue of a valid appointment extended to him by the respondent Board of Directors and a letter-directive issued pursuant thereto by respondent PNB President Roberto S. Benedicto." 3 The action taken in the case of petitioner was explained thus: "The transfer of petitioner from the Legal Department is further justified by the following facts and circumstances: a) The position of Chief Legal Counsel carries a special confidential relationship of lawyer and client. In this regard, the Bank has the prerogative to designate or change its lawyer, that is, to choose the lawyer, in whom it may have confidence, to head its Legal Department; b) As a matter of fact, it was on this same principle of confidence that in 1962 the petitioner, who was then an outsider (private practitioner), was appointed as Vice President and Chief Legal Counsel by the transfer of Atty. Ramon B. de los Reyes, who was then head (for twenty-one years) of the Legal Department, to a new position of Technical Assistant to the Executive Vice President, with only the rank of Assistant Vice President; c) The transfer of petitioner from the Legal Department was made by the

respondent Board, in the exercise of its powers, upon the recommendation of their respondent PNB President. The respondent Board had authorized the PNB President to revitalize the Legal Department, ...." 4

As was made clear at the outset, the law is not on the side of petitioner. His plea cannot be granted.

1. Petitioner's reliance on the constitutional provision against removal without cause is misplaced. It is appropriate to invoke it when an officer or employee in the civil service enjoying a fixed term is made to lose his position without warrant or justification. It certainly finds no application when the duration of one's term depends on the will of the appointing power. That is so where the position held is highly confidential in character. Such is the case of the Chief Legal Counsel of respondent Philippine National Bank. That is our answer to the specific question before us. Our decision is limited to the validity of the action taken by respondent Bank. We do not by any means intimate an opinion as to the legal consequences attaching to an action similar in character taken by any other office or agency of the government concerning a lawyer in its staff, especially one who was not employed precisely because of the marked degree of confidence reposed in him, but rather because of his technical competence.

As far as the petitioner is concerned, however, it is our conclusion that he could not plausibly contend that there was a removal in the constitutional sense as what did take place was a termination of official relation. Accepting as he did the position of chief legal adviser, the essence of which is the utmost degree of confidence involving such "close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals" whether of personal trust or official matters, 5 he could not have been unaware that his term could be cut short any time without giving rise to any alleged infringement of the above constitutional safeguard. There was no removal which according to such a mandate is only allowable for cause. Hence the lack of persuasive character of petitioner's plea.

The matter was set forth with precision and clarity by the present Chief Justice in a recent decision. 6

Thus: "This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of the appointing power. It should be noted, however, that when such pleasure turns into displeasure, the incumbent is not 'removed' or 'dismissed' from office — his 'term' merely 'expires,' in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and can not be deemed 'removed' or 'dismissed' therefrom, upon the expiration of said term. The main difference between the former — the primarily confidential officer — and the latter is that the latter's term is fixed or definite, whereas that of the former is not prefixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not 'removed' or 'dismissed' from office — his term has merely 'expired'."

2. Petitioner in his memorandum apparently was encouraged by the long, unbroken, unquestioned course of impressive adjudication of this Court that has given a well-nigh all-embracing scope to the mantle of protection covering civil service personnel against removal without cause. So it has been from Lacson v. Romero 7 to the above-cited Ingles v. Mutuc decision. 8 So, it is to be expected, it would continue to be. Petitioner's cause did not thereby gain ground however. For as had just been made clear, there was in his case no question of removal. The excerpts cited by him from a few of the authoritative precedents thus do not commend themselves for their pertinence or relevance. 9

There is a question raised by petitioner in his memorandum though, unfortunately not given the fullness of attention devoted to the removal aspect, which deserves to be further looked into. While the mode of inviting our attention to it could have benefited from a more precise delineation of its implications, reference to our Corpus v. Cuaderno 10 ruling would indicate that what petitioner had in mind was the permanency of the terms of an official whose line of work is likewise of a technical character. As was made clear by Justice J. B. L. Reyes, who penned the opinion: "The tenure of officials holding primarily confidential positions (such as private secretaries of public functionaries) ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation

involves no removal. But the situation is different for those holding highly technical posts, requiring special skills and qualifications. The Constitution clearly distinguished the primarily confidential from the highly technical, and to apply the loss of confidence rule to the latter incumbents is to ignore and erase the differentiation expressly made by our fundamental charter."

Petitioner did satisfy himself with citing the title of the above decision and that of two subsequent cases 11

that adhere to the above principle. It could be that he was more than persuaded that such a succinct and abbreviated form of argumentation would suffice to carry the day. It does not, however, as a more careful analysis of the above doctrine would indicate.

It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; his decision to terminate the relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected.

In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053.

3. It is manifest from the foregoing that we have considered the crucial issue posed from the standpoint of the right enjoyed by respondent Bank to choose who its legal counsel should be and how long he would remain as such. We have not seen any need to pass upon the conflicting claims raised as to the alleged failure of petitioner in the discharge of his functions to extend the utmost protection to the interests of respondent Bank nor of the vigorous defense of his actuations as such, which if given full credence, would erase the slightest doubt as to his competence and proficiency. For as above noted, the decisive issue is the confidential character of petitioner's position, which negates reliance on the removal-for-cause guarantee of the Constitution. We thus leave open for future determination, when and if such a litigation arises, case involving the other vice-presidents of the respondent Bank, where it would appear the overriding factor in their selection is not that degree of the utmost confidence reposed in a lawyer but their technical skills in the performance of the duties entrusted to them.

WHEREFORE, this petition for certiorari, prohibition and quo warranto is dismissed. Without pronouncement as to costs.

CADIENTE VS SANTOS

G.R. No. L-35592 June 11, 1986

MEDARDO AG. CADIENTE, petitioner, vs. LUIS T. SANTOS, City Mayor of Davao City, MAXIMINO ASISTIDO, City Treasurer of Davao City, FELIX N. PEPITO, City Auditor of Davao City, and ATTY. VICTOR CLAPANO, respondents.

ALAMPAY, J.:

Petition for review on certiorari of the decision of the Court of First Instance of Davao City, Branch I, in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al." promulgated on August 23, 1972, which dismissed the petition for mandamus, quo warranto, with preliminary injunction filed by herein petitioner.

On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as City Legal Officer of Davao City. The appointment was duly attested to and/or approved as "permanent" by the Civil Service Commission under Section 24(b) of R.A. 2260. On January 6, 1972, the new and then incumbent City Mayor Luis T. Santos, herein respondent, sent a letter (Annex "H" to the Petition, p. 43, Rollo) to the petitioner advising the latter that his services as City Legal Officer of Davao City "are dispensed with effective upon receipt of said letter" on the ground that the position of City Legal Officer was primarily confidential in nature. This was the opinion rendered by the City Fiscal of Davao City on January 6, 1972, after being requested to submit his legal opinion on said matter. Respondent City Mayor appointed respondent Atty. Victor Clapano as City Legal Officer on January 6, 1972 to take effect on said date.

Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its decision in its lst Indorsement dated March 2, 1972, therein holding that the termination, removal and/or dismissal of petitioner is "without cause and without due process" and that the position of City Legal Officer "is not included among those positions enumerated in Sec. 5 of R.A. 2260 as belonging to the non-competitive service." Subsequently, on April 7, 1972, the City Council of Davao City passed Resolution No. 210, series of 1972, therein considering and recognizing herein petitioner Atty. Medardo Ag. Cadiente, as the rightful City Legal Officer of Davao City (Rollo, pp. 54-58). Despite this resolution, the public respondents in this case who are the City Mayor, the City Treasurer, and the City Auditor of Davao City, still declined and refused to recognize petitioner as the one entitled to the disputed position of City Legal Officer of Davao City.

Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the Civil Service Commission returned the appointment of respondent Clapano to respondent City Mayor with the information that said office (Civil Service Commission) "overlooked the fact that the appointee was more than 57 years old at the time of his appointment and, therefore, authority for his appointment be first secured from the Office of the President pursuant to Section 6 of R.A. 728, as reinforced by Section 5, Civil Service Rule IV, which states that "no person shall be appointed or reinstated in the service if he is already 57 years of age, unless the President of the Philippines ... determines that he possesses special qualifications and his services are needed.

Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No. 7571, for mandamus, quo warranto with preliminary injunction against the herein respondents, praying therein that: (a) respondent City Mayor be ordered to reinstate and/or allow him to continue performing his duties and functions as City Legal Officer of Davao City; (b) the appointment of respondent Clapano be declared illegal and invalid; and (c) respondents City Mayor, City Treasurer, and City Auditor be ordered to pay him all his salaries, wages, allowances, emoluments an other benefits due him as City Legal Officer from the time of his illegal dismissal until the termination of the suit. On August 23, 1972, the trial court rendered its decision dismissing the aforestated case, as it ruled that:

The positions of Municipal Attorney, Provincial Attorney and City Legal Officer are by their very nature, primarily confidential, and therefore, belong to the non-competetive service under paragraph 1, section 5, Republic Act 2260, as amended, because the functions attached to the offices require the highest trust and confidence of the appointing authority on the appointee....

The approval of, and attestation to the appointment of petitioner Cadiente as permanent under Section 24(b) of R.A. 2260, as amended, by the Commissioner of Civil Service did not make the appointment permanent and the position fall under the competetive service. If, as the Court has found, the position is primarily confidential, petitioner Cadiente held office at the pleasure of respondent Mayor and the position belongs to the non-competitive service.

Motion for reconsideration of said decision having been denied in an Order dated September 23, 1972, the present petition to compel reinstatement and payment of back salaries, was filed with this Court on October 7, 1972. In the Resolution of this Court dated December 28, 1972, said petition was given due course.

In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential". This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 4176 (citing De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily confidential' "denotes not only confidence in the 'aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment on freedom from misgivings of betrayals of personal trust on confidential matters of state. (Emphasis supplied).

The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held—

It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office-two different causes for the termination of official relations recognized in the Law of Public Officers.

In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B, Section 1(3), 1973 Constitution).

The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:

When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or dismissed from office-his term merely expires, in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term.

The main difference between the former the primarily confidential officer-and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from office-his term merely expired,

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that:

The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

Promotion

PANIS VS CIVIL SERVICE COMMISSION

AUTOMATIC REVERSION RULE (DIVINAGRACIA VS SANTO TOMAS)

G.R. No. 110954 May 31, 1995

DELFIN N. DIVINAGRACIA, JR., AND ALEXIS D. SAN LUIS, petitioners,

vs.

HON. PATRICIA A. STO. TOMAS, RAMON P. ERENETA, JR., and PRESCILLA B. NACARIO, respondents.

BELLOSILLO, J.:

The primordial purpose of our civil service laws is to establish and maintain a merit system in the selection of public officers and employees without regard to sex, color, social status or political affiliation. But there are times when appointments to public office are dominated by partisan favoritism and patronage, where tenurial rights are subject to the whims of officialdom.

On 1 August 1980 Filomena R. Mancita was appointed Municipal Development Coordinator (MDC) of Pili, Camarines Sur, in a permanent capacity. On 14 March 1983 when the Local Government Code took effect, the office was renamed Municipal Planning and Development Coordinator (MPDC). 1 On 28 March 1983 the Sangguniang Bayan of Pili approved Resolution No. 38 creating and organizing the Office of MPDC. 2 Mancita held over the position until 1985.

On 1 January 1985 the Joint Commission on Local Government Personnel Administration approved the reorganization plan and staffing pattern of the Municipality of Pili. 3 In a letter dated 17 June 1985 Mayor Anastacio M. Prila notified Mancita that her services were being terminated effective at the close of office hours on 1 July 1985 on the ground that the Office of MDC was abolished as a result of the reorganization of the local government of Pili. Private respondent Prescilla B. Nacario who was then the Municipal Budget Officer was appointed MPDC on 10 June 1985 to take effect on 1 July 1985. 4 Nacario was replaced by Digna Isidro as Municipal Budget Officer. Isidro was succeeded a year later by Eleanor Villarico who served until 1990.

In 1988 the Local Government Officers Services, which included the local Budget Office, was nationalized and placed under the Department of Budget and Management. As a result, the authority to appoint the Budget Officers of the different local government units devolved upon the Secretary of the Budget. When Villarico resigned on 1 March 1990 the Budget Office became vacant until 30 September 1991, or for more than a year, owing to the lack of a qualified candidate that the Secretary of the Budget could appoint. In the meantime, Juan Batan, the former Municipal Budget Officer of Baao, Camarines Sur, was appointed Officer-in-Charge of the Municipal Budget Office of Pili. He was later replaced by Francisco Deocareza, the former Budget Officer of Naga City, in the same capacity. 5

On 1 October 1991, petitioner Alexis D. San Luis, Cashier II of the Department of Environment and Natural Resources (DENR), was temporarily appointed Municipal Budget Officer of Pili by Secretary Guillermo N. Carague of the Department of Budget and Management. When control over the Local Government Officers Services was returned to the local government units by virtue of the Local Government Code of 1991 (R.A. 7160 as implemented by E.O. 503), San Luis was reappointed to the same position on 22 June 1992, this time in a permanent capacity, by petitioner Delfin N. Divinagracia, Mayor of Pili. 6

San Luis started in the career civil service in 1977 as a casual clerk in the DENR, rising from the ranks until he was appointed Cashier II based in Legaspi City, the position he was holding when appointed Municipal Budget Officer of Pili. 7

Meanwhile, Mancita appealed her termination to the Merit Systems and Protection Board (MSPB). 8 On 20 June 1989 the MSPB declared her separation from the service illegal, holding that the Office of the Municipal Development Coordinator was abolished by the Local Government Code of 1991 and not by the reorganization of the Municipality of Pili as claimed by Mayor Prila. According to the MSPB, Mancita was in fact qualified for the newly-created position of MPDC since the powers and duties of the two positions were essentially the same. The MSPB ordered Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an equivalent position, and to pay her backwages from the date of her separation. 9 The decision of MSPB was appealed by Mayor Divinagracia to the Civil Service Commission but the appeal was dismissed on 16 July 1990 per CSC Resolution No. 90-657. 10 On 15 October 1990, Mayor Divinagracia informed private respondent Nacario that she was being relieved of her position as MPDC effective 16 November 1990 in order to comply with the MSPB decision to reinstate Mancita as MPDC.

On 8 November 1990 private respondent Prescilla B. Nacario filed a Petition for Declaratory Relief and Prohibition with Preliminary Injunction with the Regional Trial Court of Pili, Br. 31, docketed as Civil Case

No. P-17819, against CSC Chairperson Patricia A. Sto. Tomas, Mayor Delfin N. Divinagracia, Jr., Elium Banda, Regional Director of CSC in Region 5, and Filomena R. Mancita, praying for the annulment of CSC Resolution No. 90-657. Presiding Judge Ceferino P. Barcinas of Br. 31 issued a temporary restraining order enjoining the implementation of the questioned CSC resolution and set the date for the hearing of the application for preliminary injunction. Mancita filed a motion to dismiss on the ground that the trial court had no jurisdiction over the subject matter. Her motion was denied. Mancita then filed a special civil action for certiorari under Rule 65 before this Court questioning the denial of her motion. Through Mr. Justice Teodoro R. Padilla we granted the petition and held that the lower court had no jurisdiction over the case since all decisions, orders and resolutions of the Civil Service Commission were subject to review only by this Court on certiorari under Rule 65 of the Rules of Court. 11

While the petition of Mancita was pending with us, Nacario sent a query to public respondent Commission asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1992 public respondent opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination, and since she was the former Municipal Budget Officer she had the right to return to that position. 12

On 15 March 1993 Mayor Divinagracia wrote to CSC Chairperson Patricia A. Sto. Tomas seeking a reconsideration of her opinion of 8 December 1992. Mayor Divinagracia explained the factual circumstances behind the ouster of Mancita and the resulting appointment of Nacario to the position of MPDC, arguing that San Luis was validly appointed by the Secretary of the Budget and confirmed by the CSC, hence, entitled to security of tenure. 13

On 27 May 1993 public respondent issued CSC Resolution No. 93-1996 denying the request of Mayor Divinagracia for a reconsideration. Upholding Nacario's right to security of tenure the CSC held that the reinstatement of Mancita to the position of MPDC could not be a valid cause for the termination of Nacario. Public respondent relied on Sec. 13, Rule VI, of the Omnibus Rules Implementing Book V of E.O. No. 292, otherwise known as the Revised Administrative Code of 1978 in directing the restoration of Nacario to her former position. Sec. 13 mandates the return of an appointee, in a chain of promotions, to his former position once his appointment is subsequently disapproved.

Petitioners have come to us for relief praying that CSC Resolution No. 93-1996 be nullified for having been issued with grave abuse of discretion. On 5 October 1993, upon motion of petitioners, this Court issued a status quo ante order enjoining the enforcement of the questioned CSC order. 14 Petitioners contend that Sec. 13, Rule VI, of the Omnibus Rules Implementing the Revised Administrative Code (E.O. 292) does not apply to the present case because the rule covers only appointments in a chain of

promotions and not where a public officer was merely transferred to another position of the same rank, grade and level.

Petitioners further contend that Nacario was deemed to have vacated her position as Budget Officer when she accepted her appointment as MPDC considering that there were several appointments made to the Budget Office in the past eight (8) years since her transfer. 15 According to petitioners, San Luis was also denied his right to be heard when public respondent ordered him to vacate his position without affording him an opportunity to contest the claim of Nacario thus violating his constitutional right to due process. 16

Upon the other hand, private respondent claims that she did not voluntarily apply for transfer from the Budget Office to the Office of MPDC but was constrained to "accept" the new position because of Mayor Prila. She was, in her own words, "a passive participant in the movement of personnel" in the municipal government of Pili having acted as a "subservient public official" in assuming the position of MPDC.

Nacario maintains that her "acceptance" of the position of MPDC which she admits is of the same rank, salary grade and level was motivated by her respect for Mayor Prila who was then her superior. In fact, according to her, she applied for the position of Budget Officer with the Department of Budget and Management while she was MPDC indicating that she did not abandon or relinquish her former position as alleged by petitioners. 17

For their part, public respondents Sto. Tomas and Ereneta, Jr., insist on the application to the present case of the automatic reversion rule provided under Sec. 13, Rule VI, of the Omnibus Rules Implementing Book V of E.O. 292. They submit that the term "chain of promotions" must not be interpreted in a literal, rigid and narrow sense but must be construed liberally in favor of private respondent who merely accepted the position of MPDC to accommodate her superior unaware that her new appointment thereto would be infirmed. 18

We deny the petition. Petitioner Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On the other hand, respondent Prescilla B. Nacario who is protected by law in her security of tenure should be reinstated thereto.

Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 provides that —

Sec. 13. All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments.

Under the aforecited section, before a public official or employee can be automatically restored to her former position, there must first be a series of promotions; second, all appointments are simultaneously submitted to the CSC for approval; and third, the CSC disapproves the appointment of a person proposed to a higher position.

The essential requisites prescribed under Sec. 13 do not avail in the case at bench. To start with, the movement of Nacario from the Budget Office to the Office of MPDC cannot be considered a promotion for the term connotes an increase in duties and responsibilities as well as a corresponding increase in salary. 19 Conformably therewith, we find the movement of Nacario one of lateral transfer. 20

A careful examination of the qualifications, powers and duties of a Budget Officer and an MPDC provided under Secs. 475 and 476 of the Local Government Code of 1991 shows that the latter office is not burdened with more duties and responsibilities than the former. It is also interesting to note that there was, on the contrary, a reduction in the basic salary of Nacario, from P30,505.20 per annum 21 as Budget Officer to P27,732.00 per annum 22 as MPDC. Moreover, private respondent admitted in her comment and in her memorandum that the position of Budget Officer and MPDC were of the same rank, salary grade and level. 23 This was attested to by Vilma J. Martus, the Human Resource Management Officer of Pili, who certified that per Position Allocation List (PAL) of the municipality the Budget Officer and MPDC are of equal level. 24

Aside from the lack of a series of promotions, the other two (2) requisites are not also present, i.e., the appointments of the parties concerned were not simultaneously submitted to the CSC for approval — the appointment (permanent) of Nacario was approved by the CSC on 13 June 1985 while the appointment (permanent) of San Luis was approved by the CSC on 9 February 1993 — and, the ouster of Nacario from the Office of MPDC was a result of the MSPB decision directing the reinstatement of Mancita and not because the CSC disapproved her appointment as MPDC.

While the contemporaneous construction of Sec. 13 by the CSC is entitled to great weight and respect, this Court shall depart from such interpretation when it is clearly erroneous 25 or when there is no ambiguity in the rule, 26 as in the instant case, and yield to the letter of the law taking its terms in their plain, ordinary and popular meaning. 27

Let us now examine whether the lateral transfer of private respondent was validly made in accordance with Sec. 5, par. 3, Rule VII, Omnibus Rules Implementing Book V of E.O. 292. If not, then private respondent is entitled to be protected in her security of tenure.

Sec. 5, par. 3, of Rule VII provides that —

Transfer shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the commission. (emphasis supplied)

According to Nacario she never applied or sought appointment by transfer to the position of MPDC since she even had no prior knowledge of her appointment. 28 She assumed the new position only in order to comply with the move of Mayor Prila to supposedly "reorganize" the municipal government of Pili. Nacario did not question her transfer because she revered the mayor and did not in any way intend to displease him.

The submissive attitude displayed by private respondent towards her transfer is understandable. Although Nacario was not informed of the reasons therefor she did not complain to the mayor or appeal her case to the CSC if in fact the same was not made in the interest of public service. For it is not common among local officials, even those permanent appointees who are more secured and protected in their tenurial right, to oppose or question the incumbent local executive on his policies and decisions no matter how improper they may seem.

Even as early as 1968, in Nemenzo v. Sabillano, 29 we held that —

There are altogether too many cases of this nature, wherein local elective officials, upon assumption of office, wield their new-found power indiscriminately by replacing employees with their own proteges,

regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts.

Private respondent was the Budget Officer of Pili for almost eight (8) years from August 1980 until her transfer in July, 1988. 30 Nacario appeared to be satisfied with her work and felt fulfilled as Budget Officer until Mayor Prila appointed her MPDC to fill up the position, which was not even vacant at that time. It was only seven (7) days after Nacario's appointment when Mayor Prila informed Mancita that her services were being terminated. Simply put, Mayor Prila was so determined in terminating Mancita that he conveniently pre-arranged her replacement by Nacario. Although Nacario continued to discharge her duties, this did not discourage her from trying to regain her former position. Undaunted, she applied with the Office of the Budget Secretary for the position of Budget Officer upon learning that it was placed under the Department of Budget and Management. She was not however successful.

In Sta. Maria v. Lopez 31 we distinguished between a transfer and a promotion and laid down the prerequisites of a valid transfer thus —

A transfer is a "movement from one position to another which is of equivalent rank, level and salary, without break in service." Promotion is the "advancement from one position to another with an increase in duties and responsibilities as authorized by law, and is usually accompanied by an increase in salary" . . . A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to "lure the employee away from his permanent position," cannot be done without the employees' consent. For that would constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. (emphasis provided)

The rule that unconsented transfers amount to removal is not however without exception. As we further said in Sta. Maria, —

Concededly there are transfers which do not amount to removal. Some such transfers can be effected without the need for charges being proffered, without trial or hearing, and even without the consent of the employee . . . . The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a specific station, an employee may be transferred or assigned provided the transfer affects no substantial change in title, rank and salary . . . . Such a rule does not proscribe 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 . . . .

Neither does illegality attach to the transfer or reassignment of an officer pending the determination of an administrative charge against him; or to the transfer of an employee, from his assigned station to the main office, effected in good faith and in the interest of the service pursuant to Sec. 32 of the Civil Service Act.

Clearly then, the unconsented lateral transfer of Nacario from the Budget Office to the Office of MPDC was arbitrary for it amounted to removal without cause hence, invalid as it is anathema to security of tenure. When Nacario was extended a permanent appointment on 1 August 1980 and she assumed the position, she acquired a legal, not merely an equitable, right to the position. Such right to security of tenure is protected not only by statute, but also by the Constitution 32 and cannot be taken away from her either by removal, transfer or by revocation of appointment, except for cause, and after prior notice. 33

The guarantee of security of tenure is an important object of the civil service system because it affords a faithful employee permanence of employment, at least for the period prescribed by law, and frees the employee from the fear of political and personal prejudicial reprisal. 34

Consequently, it could not be said that Nacario vacated her former position as Budget Officer or abdicated her right to hold the office when she accepted the position of MPDC since, in contemplation of law, she could not be deemed to have been separated from her former position or to have terminated her official relations therewith notwithstanding that she was actually discharging the functions and exercising the powers of MPDC. The principle of estoppel, unlike in Manalo v. Gloria, 35 cannot bar her from returning to her former position because of the indubitable fact that private respondent reluctantly and hesitantly accepted the second office. The element of involuntariness tainted her lateral transfer and invalidated her separation from her former position.

For another thing, the appointment of San Luis as Budget Officer carried with it a condition. At the back of his appointment is inscribed the notation Sa kondisyon nasa ayos ang pagkakatiwalag sa tungkulin ng dating nanunungkulan, which when translated means "Provided that the separation of the former incumbent is in order." Considering that the separation of Nacario who was the former incumbent was not in order, San Luis should relinquish his position in favor of private respondent Nacario. This is, of course, without prejudice to San Luis' right to be reinstated to his former position as Cashier II of the DENR, he being also a permanent appointee equally guaranteed security of tenure.

A final word. Petitioners cannot claim that they have been denied due process of law by public respondent. The records reveal that petitioners had the opportunity to question the adverse opinion rendered by CSC Chairperson Sto. Tomas in a letter dated 15 March 1993. 36 The correspondence which was in the nature of a motion for reconsideration constitutes sufficient opportunity for petitioners who felt aggrieved to inform the CSC of their side of the controversy. What is sought to be safeguarded in the application of due process is not the lack of previous notice but the denial of opportunity to be heard. 37

Before we write finis to this ponencia, we remind those public officials who flaunt their authority — and those similarly inclined — to faithfully abide by the Constitution and observe honestly and in good faith the tenurial security of public servants who serve the government with sincerity and dedication. They should not be moved or removed from their established positions without any lawful cause and pushed at will like pawns on the bureaucratic chessboard.

WHEREFORE, premises considered, the petition is DISMISSED. CSC Resolution No. 93-1996 is AFFIRMED insofar as it orders the reinstatement of PRESCILLA B. NACARIO to the Office of Municipal Budget Officer of Pili, Camarines Sur. Accordingly, petitioner Mayor Delfin N. Divinagracia, or whoever is now the incumbent Mayor of Pili or acting in his behalf, is ORDERED to reinstate private respondent Prescilla B. Nacario immediately to the position of Municipal Budget Officer of Pili and petitioner Alexis D. San Luis to vacate the said office without prejudice to regaining his former position in the government if legally feasible and warranted.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Romero, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Quiason, J., is on leave.

Separate Opinions

DAVIDE, Jr., J., dissenting:

I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer (MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave abuse of discretion.

I gather from the ponencia the following facts:

Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The name of this office was changed to MPDC in March 1983.

On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario accepted the appointment and assumed office.

In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be terminated effective at the close of business hours on 1 July 1985 on the ground that the office of MDC was abolished as a result of the reorganization of the local government of Pili.

Nacario assumed her new office over the objection of Mancita who did not accept her termination from the service and, instead, forthwith appealed to the Merit Systems Protection Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination from the service, ruled that

she was qualified for the position of MPDC, and ordered the new mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16 July 1990 per CSC Resolution No. 90-657.

On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario would not accept her termination. However, instead of going to the CSC for a possible reconsideration of CSC Resolution No. 90-657, she filed with the Regional Trial Court (RTC) of Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor Divinagracia, the CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution No. 90-657.

Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC are subject to review only by this Court under Rule 65 of the Rules of Court.

During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination and since she was the former MBO, she has the right to return to the position of MBO.

In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27 May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292. This Section mandates the return of an appointment, in a chain of promotions, to his former position once his appointment is subsequently disapproved.

As regards her former office of MBO which Nacario vacated, several persons held it after she had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor Villarico who served

until 1 March 1990 when she resigned. It may be recalled that in 1988 the Local Officers Services, which included the local budget office, was nationalized and placed under the Department of Budget and Management (DBM). Consequently, the authority to appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of qualified candidates for the position, the vacancy lasted until 30 September 1991. In the meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO of Naga City.

On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural Resources (DENR), as MBO of Pili.

On 22 June 1992, after control over the Local Government Officers Services was returned to the local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160) as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO of Pili.

From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO. She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest, 15 October 1990 when she was told to vacate it to comply with the decision of the MSPB reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded her as MBO. Nacario's explanation that she assumed the new position only in order to comply with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of her new office and the challenge of a new role as coordinator of planning and development in the municipality. If indeed she was "forced" to accept the new position, then she could have requested the new mayor, Mayor Divinagracia, to return her to the position of MBO.

I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC was an "unconsented lateral transfer" to be without factual basis. It should be noted that there was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. The letter-query seems to be a last-ditch effort at damage control after Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC resolution reinstating Mancita. By then,

however, Nacario had lost her period to seek relief from CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No. 98120, it should not have entertained the letter-query.

Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears only in her memorandum. This Court should not accept it as the gospel truth.

On the other hand, the appointment of San Luis as MPDC was regularly done and without any protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily transferred to the position of MPDC, she should have protested the appointment of San Luis.

Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the majority's theory of "unconsented lateral transfer" was to be accepted, Nacario must further be barred on the ground of estoppel.

If there is any party whose security of tenure should be protected, it is San Luis. Hence, he should not be given his walking papers. The disposition in the majority opinion that the dismissal is without prejudice to regaining his former position in the government if legally feasible is inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to this case.

I vote then to grant the petition.

Regalado, J., concurs.

Separate Opinions

DAVIDE, Jr., J., dissenting:

I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer (MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave abuse of discretion.

I gather from the ponencia the following facts:

Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The name of this office was changed to MPDC in March 1983.

On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario accepted the appointment and assumed office.

In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be terminated effective at the close of business hours on 1 July 1985 on the ground that the office of MDC was abolished as a result of the reorganization of the local government of Pili.

Nacario assumed her new office over the objection of Mancita who did not accept her termination from the service and, instead, forthwith appealed to the Merit Systems Protection Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination from the service, ruled that she was qualified for the position of MPDC, and ordered the new mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16 July 1990 per CSC Resolution No. 90-657.

On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario would not accept her termination. However, instead of going to the CSC for a possible reconsideration of CSC Resolution No.

90-657, she filed with the Regional Trial Court (RTC) of Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor Divinagracia, the CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution No. 90-657.

Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC are subject to review only by this Court under Rule 65 of the Rules of Court.

During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination and since she was the former MBO, she has the right to return to the position of MBO.

In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27 May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292. This Section mandates the return of an appointment, in a chain of promotions, to his former position once his appointment is subsequently disapproved.

As regards her former office of MBO which Nacario vacated, several persons held it after she had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor Villarico who served until 1 March 1990 when she resigned. It may be recalled that in 1988 the Local Officers Services, which included the local budget office, was nationalized and placed under the Department of Budget and Management (DBM). Consequently, the authority to appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of qualified candidates for the position, the vacancy lasted until 30 September 1991. In the meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO of Naga City.

On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural Resources (DENR), as MBO of Pili.

On 22 June 1992, after control over the Local Government Officers Services was returned to the local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160) as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO of Pili.

From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO. She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest, 15 October 1990 when she was told to vacate it to comply with the decision of the MSPB reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded her as MBO. Nacario's explanation that she assumed the new position only in order to comply with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of her new office and the challenge of a new role as coordinator of planning and development in the municipality. If indeed she was "forced" to accept the new position, then she could have requested the new mayor, Mayor Divinagracia, to return her to the position of MBO.

I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC was an "unconsented lateral transfer" to be without factual basis. It should be noted that there was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. The letter-query seems to be a last-ditch effort at damage control after Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC resolution reinstating Mancita. By then, however, Nacario had lost her period to seek relief from CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No. 98120, it should not have entertained the letter-query.

Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears only in her memorandum. This Court should not accept it as the gospel truth.

On the other hand, the appointment of San Luis as MPDC was regularly done and without any protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily transferred to the position of MPDC, she should have protested the appointment of San Luis.

Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the majority's theory of "unconsented lateral transfer" was to be accepted, Nacario must further be barred on the ground of estoppel.

If there is any party whose security of tenure should be protected, it is San Luis. Hence, he should not be given his walking papers. The disposition in the majority opinion that the dismissal is without prejudice to regaining his former position in the government if legally feasible is inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to this case.

I vote then to grant the petition.

Regalado, J., concurs.

TRANSFER

PALMA-FERNANDEZ VS DELAPAZ

G.R. No. 78946 April 15, 1988

DR. NENITA PALMA-FERNANDEZ, petitioner,

vs.

DR. ADRIANO DE LA PAZ, DR. SOSEPATRO AGUILA, and THE SECRETARY OF HEALTH, respondents.

Oscar C. Fernandez for petitioner.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita Palma-Fernandez, claiming entitlement to the position of Assistant Director for Professional Services at the East Avenue Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by private respondent, Dr. Sosepatro Aguila.

The background facts follow:

On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then Minister of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin.

Previous to this appointment, petitioner, a career physician, occupied the positions of Medical Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her appointment as Chief of Clinics on 1 May 1985. Even during her incumbency as Medical Specialist II, petitioner was already designated as Acting Chief of Clinics since September 1983 up to her permanent appointment to said position.

As Chief of Clinics, petitioner exercised direct control and supervision over all heads of departments in the Medical Center

In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics to Assistant Director for Professional Services. In partial implementation of this new set-up, respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30, Series of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional Services (Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control and supervision over all heads of departments in the Medical Center.

On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the Ministry of Health" was promulgated.

On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr. Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services "vice Dr. Nenita Palma-Fernandez, who will be transferred to the Research Office." (Hospital Order No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the interest of the hospital service."

On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by respondent De la Paz, whereby petitioner was relieved "of her present duties and responsibilities as Chief of Clinic and hereby transferred to the Research Office. This order being issued in the interest of the hospital service.

Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as well as to the Commissioner of Civil Service and the Chairman of the Government Reorganization Commission.

Failing to secure any action on her protest within a month's time, petitioner filed on 8 July 1987 the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr. de la Paz, Dr. Aguila, and the Secretary of Health.

On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the implementation of Hospital Orders Nos. 21 and 22, series of 1987.

After considering and deliberating on all Comments, the Reply, and the Rejoinder of the Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to the Petition, and dispensing with memoranda, declared the case submitted for resolution.

The Solicitor General has aptly framed the issues for resolution as follows:

1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital Orders in question;

2. Whether or not petitioner has a valid cause of action; and

3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the instant Petition.

The Solicitor General, on behalf of the Secretary of Health, makes common cause with petitioner and answers the first and third issues in the negative, and the second in the affirmative. For their part, Respondents De la Paz and Aguila uphold the opposite views.

We rule for petitioner.

1. Since the East Avenue Medical Center is one of the National Health Facilities attached to the Department of Health, the power to appoint and remove subordinate officers and employees, like petitioner, is vested in the Secretary of Health, not the Medical Center Chief. The latter's function is confined to recommendation. Thus, Section 79 (D). of the Revised Administrative Code provides:

Section 79 (D). Power to appoint and remove.— The Department Head, upon the recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines, and may remove or punish them, except as especially provided otherwise, in accordance with the Civil Service Law...

The Department Head also may, from time to time, in the interest of the service, change the distribution among the several bureaus and offices of his Department of the employees or subordinates authorized by law.

Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise states:

SEC. 26.New Structure and Pattern...

The new position structure and staffing pattern of the Ministry shag be prescribed by the Minister within one hundred twenty (120) days from the approval of this executive order subject to approval by the Office of Compensation and Classification and the authorized positions created thereunder shall be filled thereafter with regular appointments by him or the President, as the case may be as herein provided...

Respondent Medical Center Chiefs argument that petitioner was not appointed but was merely transferred in the interest of the public service to the Research Office pursuant to Section 24 (c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines 1 will not alter the situation. Even a transfer requires an appointment, which is beyond the authority of respondent Medical Center Chief to extend, supra. Besides, the transfer was without petitioner's consent, was tantamount to removal without valid cause, and as such is invalid and without any legal effect (Garcia, et al. vs. Lejano, et al., 109 Phil. 116). A removal without cause is violative of the Constitutional guarantee that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Article IX, B, Section 2(3),1987 Constitution).

Petitioner's "designation" as Assistant Director for Professional Services on 8 August 1986 in accordance with the organizational structure of the Department of Health under Hospital Order No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her occupancy of that position temporary in character. It bears stressing that the positions of Chief of Clinics and Assistant Director for Professional Services are basically one and the same except for the change in nomenclature. Petitioner's permanent appointment on 1 May 1985 to the position of Chief of Clinics, therefore, remained effective.

Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom Constitution and its Implementing Rules and Regulations embodied in Executive Order No. 17, Series of 1986. The relevant provision was effective only "within a period of one year from February 25, 1 986." 2 The Hospital Orders in question were issued only on 29 May, 1987.

Executive Order No. 119, or the 'Reorganization Act of the Ministry of Health" promulgated on 30 January 1987, neither justifies petitioner's removal. The pertinent provision thereof reads:

Sec. 26. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and

responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution.

The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, et al. vs. Hon. Benjamin B. Esquerra, et al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern.

And while it may be that the designation of respondent Aguila as Assistant Director for Professional Services and the relief of petitioner from the said position were not disapproved by respondent Secretary of Health, it by no means implies that the questioned acts of respondent Medical Center Chief were approved by the former official.

2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota vs. Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715).

3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from seeking judicial relief This rule is not a hard and fast one but admits of exceptions among which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is 'patently illegal" (Carino vs. ACCFA, No. L-19808, September 29,1966,18 SCRA 183). The questions involved here are purely legal. The subject Hospital Orders violated petitioner's constitutional right to security of in tenure and were, therefore, "patently illegal." Judicial intervention was called for to enjoin the implementation of the controverted acts.

There was substantial compliance by petitioner with the requirement of exhaustion of administrative remedies since she had filed a letter-protest With the respondent Secretary of Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the Government Reorganization Commission, but the same remained unacted upon and proved an inadequate remedy. Besides, an action for quo warranto must be filed within one year after the cause of action accrues (Sec. 16, Rule 66,

Rules of Court), and the pendency of administrative remedies does not operate to suspend the running of the one-year period (Cornejo vs. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663).

WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita Palma-Fernandez, is hereby held entitled to the position of Assistant Director of Professional Services of the East Avenue Medical Center up to the expiration of her term. The Temporary Restraining Order heretofore issued enjoining the implementation of Hospital Orders Nos. 21 and 22, both dated 29 May 1987, is hereby made permanent.

SO ORDERED.

CHATO VS NATIVIDAD

G.R. No. 113843 June 2, 1995

HON. LIWAYWAY VINZONS-CHATO, in her capacity as Commissioner of Internal Revenue, and SOLON B. ALCANTARA, petitioners,

vs.

HON. ELI G.C. NATIVIDAD, Presiding Judge of Branch 48, Regional Trial Court of San Fernando, Pampanga, and SALVADOR NORI B. BLAS, respondents.

MENDOZA, J.:

This is a petition for certiorari to annul the order dated February 7, 1994 of respondent judge of the Regional Trial Court of San Fernando, Pampanga in Civil Case No. 10066, enjoining petitioner Commissioner of Internal Revenue from transferring respondent Nori B. Blas, as revenue district officer from San Fernando, Pampanga to Tuguegarao, Cagayan.

The facts of the case are as follows:

On October 26, 1993, President Fidel V. Ramos issued E.O. No. 132, entitled "Approving the Streamlining of the Bureau of Internal Revenue."

Pursuant to this Order, Commissioner Liwayway Vinzons R. Chato issued on December 1, 1993 Revenue Administrative Order No. 5-93, "Redefining the areas of jurisdiction and renumbering of regional district offices. "The order subdivided the nineteen revenue regions provided for under the National Internal Revenue Code into 115 revenue districts and renumbered the resulting revenue district office (RDOs). In addition, it abolished the previous classification of RDOs into Class A-1, A, B, C, and D and provided that henceforth all RDOs shall be treated as the same class. 1

On December 10, 1993, petitioner Commissioner of Internal Revenue, citing the "exigencies of the revenue service," issued Revenue Travel Assignment Order No. 80-93 (RTAO 80-93), directing ninety revenue district officers to report to new assignments in the redesignated and renumbered revenue district offices nationwide.

Among those affected by the reassignment was private respondent Salvador Nori Blas, who was ordered to report to Revenue District No. 14 in Tuguegarao, Cagayan. In turn, petitioner Solon B. Alcantara was ordered to report to Blas' former post in San Fernando, Pampanga, now known as Revenue District No. 21.

On December 15, 1993, private respondent wrote petitioner Commissioner requesting a reconsideration of his transfer. He felt that his accomplishments and performance had not been taken into consideration in the reshuffle and that his transfer from what he thought is the larger revenue district of San Fernando, Pampanga to the smaller district in Tuguegarao, Cagayan was a demotion. He claimed that he was among the top ten examiners of Revenue Region No. 5 for six consecutive years and that he was a model employee in 1981. In addition, he mentioned that he was a diabetic and that he needed to be near his doctor, and could not endure long travels.

On January 19, 1994, with his letter unacted upon, private respondent filed with the Regional Trial Court a verified complaint for "Injunction with Preliminary Injunction and Temporary Restraining Order" against the Commissioner and petitioner Alcantara. He alleged that the transfer without his consent from the revenue district in San Fernando, which was formerly designated as a Class "A," to the revenue district in Tuguegarao, which was classified as a Class "C," with a smaller pool of personnel and only one-

fourth of the revenue capacity of Pampanga, would cause his "dislocation" and demotion or "a diminution in rank, status, and span of duties and responsibilities." He invoked E.O. No. 132, that

§2. Redeployment of Personnel. The redeployment of officials and other personnel on the basis of the streamlining embodied in this Executive Order shall not result in the dislocation of existing personnel nor in the diminution of rank and compensation and shall take into account pertinent Civil Service Law and rules.

On January 20, 1994, the respondent judge issued a temporary restraining order and set the hearing on the application for a writ of preliminary injunction on January 28, 1994.

On February 7, 1994, he granted the writ of preliminary injunction, stating:

After the hearing, it is clear from [sic] the Court that what is to be resolved in determining whether or not an injunction lies are the following issues: whether or not there is a reduction in duties and responsibilities; whether or not, there was a demotion and dislocation on the part of the plaintiff when the public defendant Chato issued Revenue Travel Assignment Order (RTAO) No. 80-93.

Considering that in order for the Court to squarely resolve and properly ventilate the issues above-stated, the Court deemed it wise and proper that the same be threshed out in a full blown trial and to maintain status quo, this Court hereby grants the application for the issuance of a writ of preliminary injunction and fixes the bond to be posted by the plaintiff in the amount of P5,000.00, to answer for the damages which the defendants may sustain by reason of the injunction if the Court should finally decide that the plaintiff was not entitled thereto.

WHEREFORE, defendant Liwayway Vinzons-Chato, the Commissioner of Internal Revenue, is hereby ordered and directed to cease and desist in enforcing Revenue Travel Assignment Order (RTAO) No. 80-93 dated December 10, 1993 as far as the plaintiff herein is concerned; and defendant Solon B. Alcantara to cease and desist from assuming office as Revenue District Officer of District 18 (now 21), San Fernando, Pampanga, pending the hearing on the merits of the injunction case, unless a contrary order is issued.

SO ORDERED.

On February 24, 1994, the Commissioner filed the present petition assailing this Order.

Petitioner alleges that respondent judge acted with grave abuse of discretion in issuing the preliminary injunction because nowhere in the order was it stated that private respondent had a right which was violated as a result of the issuance the reassignment of regional revenue officers under of RTAO 80-93.

Petitioner argues, firstly, that private respondent did not have any vested right to his station in San Fernando, Pampanga since he was only designated to the post and not appointed thereto. Neither did private respondent show any right to be exempted from the reorganization.

Secondly, petitioner argues that the transfer was made pursuant to E.O. No. 132, and this being so, it should not be considered disciplinary in nature. On the contrary, it was made in the interest of the public service, as an exception to the rule requiring the employee's consent in non-disciplinary transfers.

Thirdly, neither was the transfer a demotion, since there was no reduction in duties, responsibilities, status, rank, or salary. Petitioner cited the fact that RTAO 80-93 had abolished all classes of RDOs and considered them to be of the same class. Private respondent's reliance on the classifications previously followed was, therefore, without basis.

Fourthly, petitioner contends that the failure of private respondent to exhaust all administrative remedies prior to filing the case was a jurisdictional defect and a valid ground for dismissal of the case in the RTC. Petitioner cites P.D. No. 807, §24(c) which provides that if an employee believes his transfer to be unjustified, he may appeal his case to the Civil Service Commission. Resort to the court was premature and respondent judge should have dismissed the case.

Petitioner further argues that the issue is moot and academic since petitioner Alcantara took his post as revenue district officer of Pampanga on January 3, 1994, before the action below was filed on January 19, 1994. Consequently there was no status quo to be preserved by the issuance of a preliminary injunction.

On the other hand, private respondent contends:

1. Private respondent never claimed, and does not claim, that he has any vested right at all to his present assignment/designation as the Revenue District Officer of Revenue District 18 (Re-numbered 21) at San Fernando, Pampanga. All that he asserts is his constitutional right to protection from a demotion not for cause, and without his consent under the guise of a "transfer in the exigencies of the service"; (Annex "A", copy of complaint in Civil Case No. 10066, RTC Br. 48, 3rd Judicial Region, San Fernando, Pampanga)

2. Private respondent never did, and does not question the power of, nor the need for, the Commissioner of Internal Revenue to "reshuffle" personnel in the interest of ensuring better — more honest — public service from the BIR;

3. The basic petition never questioned the validity of the entire "Revenue Travel Assignment Order No. 80-93" dated 10 December 1993 which sought to "reshuffle" ninety (90) revenue district officers in fourteen (14) BIR regions in Luzon and the Visayas. Hence the claim that the government efforts at reorganizing the revenue district service would be "derailed" by a dispute on the unconstitutionality of the demotion of one such revenue district officer is sheer speculation, not grounded on reality. On the other hand, it is the injustice, oppression and the manifest disregard of the constitutional standards of merit and fitness, committed under the guise of such reorganization that will definitely erode the morale and hamper the consequent performance of BIR personnel.

He contends that his transfer constitutes a demotion because, in effect, his span of control in terms of jurisdiction and personnel has been considerably diminished. He claims that he has earned, through hard work, as evidenced by his service record, the position at San Fernando, Pampanga which has a larger staff and revenue capacity and is much closer to Manila.

Private respondent likewise denies that petitioner Alcantara assumed office as revenue district officer of Pampanga because, according to private respondent, he never relinquished his position. Hence, there was a status quo that could be served by the injunction.

We issued a temporary restraining order on March 1, 1994 enjoining respondent judge to cease and desist from implementing his order of February 7, 1994 and ordered the respondents to comment on the petition.

We find the-petition to be meritorious.

Private respondent has shown no clear legal right to the issuance of a writ of preliminary injunction but despite this fact the trial court issued his questioned order enjoining petitioner from transferring private respondent.

In his complaint below, private respondent claimed that he demoted because,

the revenue district that is the northernmost mainland province of Cagayan has only one-fourth (1/4) the revenue capacity of Pampanga, plaintiff's present station (Cagayan P45.5 million; Pampanga — P194.1 million; '87 BIR Annual Report); a diminution in rank, status and span of duties and responsibilities; and a dislocation from Pampanga, a province 100 kilometers north of Manila, to Cagayan; over 500 kilometers northeast of Manila; 2

But his transfer to the Tuguegarao revenue district, as petitioner Commissioner explained in her opposition to the application for a writ of preliminary injunction, did not really entail any diminution in rank, salary, status and responsibilities. Private respondent's claim that the Tuguegarao revenue district is smaller than that in San Fernando, Pampanga has no basis because, as already noted, the classification of RDOs' into Class A-1, A, B, C and D has been abolished and all RDO's are now considered to be of the same class.

Nor did petitioner allege in his complaint below that he had a vested right to his post as revenue district officer of Revenue District No. 21 (formerly No. 18) in San Fernando, Pampanga. The trial court's order granting the writ of preliminary injunction cites no right of private respondent which might have been violated as a result of his unconsented transfer to Tuguegarao. The only reason given for the writ of preliminary injunction is that it is needed to preserve the status quo until the issues can be "threshed out in full blown trial."

But the preservation of the status quo is not alone sufficient to justify the issuance of an injunction. The plaintiff must show that he has a clear legal right; that such right has been violated; and that he is entitled to the relief he demands, consisting in restraining the commission of the acts complained of. 3

Indeed, private respondent's transfer is part of a nationwide reshuffle or reassignment of revenue district officers designed to improve revenue collection. More specifically the objective of the reassignment, as stated in Revenue Administrative Order No. 5-93, is "to strengthen the decentralization of the Bureau's set-up for the purpose of maximizing tax assessments and revenue collections, intensifying enforcement of revenue laws and regulations and bringing the revenue service closer to the taxpaying public."

It could be that private respondent is being transferred to a revenue district which he claims has less revenue capacity than San Fernando, Pampanga, precisely to improve the capacity of the new assignment. His new assignment should therefore be considered by him a challenge to his leadership as revenue district officer rather than a demotion or a penalty. In Department of Education, Culture and Sports vs. Court of Appeals, 4 the respondent, who was principal of the Carlos Albert High School, was transferred to the Manuel Roxas High School because of the exigencies of the service. She questioned the order on the same ground advanced by private respondent in this case that it was in violation of her right to security of tenure. In rejecting her contention this Court ruled:

It should be here emphasized that Azurin's letter of August 12, 1982, clearly stated that Navarro's reassignment is in the exigencies of the service. It was explicitly mentioned that her reassignment is a recognition of her capabilities as administrator in improving the Carlos Albert High School and that she should look at her new assignment as a challenge to accomplish new and bigger projects for Manuel Roxas High School. Moreover, her reassignment was the result of a recognition/reshuffling of all principals in the Quezon City public schools in the exigencies of the service pursuant to MEC Circular No. 26, Series of 1972. This circular refers to the policy of the Ministry of Education that principals, district supervisors, academic supervisors, general education supervisors, school administrative officers and superintendent are to be transferred upon completion of five (5) years of service in one station. Such policy was based on the experience that when school officials have stayed long enough in one station, there is a tendency for them to become stale and unchallenged by new situations and conditions, and that some administrative problems accumulate for a good number of years. (Emphasis added)

Private respondent failed to show patent illegality in the action of the Commissioner constituting violation of his right to security of tenure. To sustain his contention that his transfer constitutes a demotion simply because the new assignment is not to his liking would be to subordinate government projects, along with the great resources and efforts they entail, to the individual preferences and opinions of civil service employees. Such contention would negate the principle 5 that a public office is a public trust and that it is not the private preserve of any person. In granting an injunction despite the absence of any legal right to be protected, respondent committed a grave abuse of its discretion.

Moreover, under the law, any employee who questions the validity of his transfer should appeal to the Civil Service Commission. Respondent judge should have dismissed the action below for failure of private respondent to exhaust administrative remedies. 6

While this case was pending in this Court, private respondent filed three separate motions to cite petitioner for contempt. The first, filed on May 16, 1994, alleged that petitioner had filed an administrative complaint for gross insubordination against private respondent for refusing to take his new assignment and that this was an act of harassment on the part of petitioner.

On July 8, 1994, private respondent filed another motion in which he claimed that petitioner had ordered him preventively suspended in connection with another case filed against him for grave misconduct, for having allegedly caused the investigation of the 1991 Income Tax and Value-Added Tax cases of the Central Fermentation Industrial Corporation.

On February 20, 1995, private respondent filed a third motion, alleging that petitioner rendered a decision in the case for gross insubordination and imposed on private respondent the penalty of suspension for 6 months and 1 day.

The first and second motions are based on private respondent's allegation that pending the determination of the validity of his transfer by the trial court and this Court, he could not be compelled to assume the new post. But the writ of preliminary injunction issued by the trial court, which enjoined the transfer of private respondent, was countermanded by the temporary restraining order subsequently issued by this Court, with the result that his transfer became again effective. There was nothing to stop the petitioner from enforcing her Revenue Travel Assignment Order No. 80-93. 7

On the other hand, the filing of another administrative case against private respondent for grave misconduct appears to have no relation at all to his transfer to a new post or to the fact that he could no longer act as Revenue District Officer on any case in Pampanga. The administrative case is based on the fact that he allegedly violated a Revenue Memorandum Order No. 31-93, prohibiting the investigation of tax cases. The charge is that private respondent caused the investigation of the 1991 Income Tax and Value Added Tax cases of the Central Fermentation Industrial Corp. There is, therefore, no basis for private respondent's complaint that in instituting the administrative case, petitioner committed contempt of this Court.

WHEREFORE, the petition is GRANTED and the order dated February 7, 1994 of respondent judge is ANNULLED AND SET ASIDE, and private respondent's complaint in the trial court is DISMISSED.

Private respondent's motions for contempt are DENIED.

SO ORDERED.

TEOTICO VS AGDA

G.R. No. 87437 May 29, 1991

JOAQUIN M. TEOTICO, petitioner,

vs.

DEMOCRITO O. AGDA, SR., and HON. JUDGE IGNACIO M. CAPULONG, Regional Trial Court, Branch No. 134, Makati, Metro Manila, respondents.

Ramon M. Miranda for private respondent.

DAVIDE, JR., J.:p

Petitioner, Administrator of the Fiber Industry Development Authority, assisted by the Office of the Solicitor General, filed this original petition for certiorari and prohibition, with a prayer for a writ of preliminary injunction and for temporary restraining order. He urges Us to annul the Orders of 16 and 29 December 1988 and 14 February 1989, and the writ of injunction dated 11 May 1988 issued by respondent Judge of Branch 134 (Makati, Metro Manila) of the Regional Trial Court, National Capital Judicial Region, in Civil Case No. 88-577; 1 to prohibit respondent Judge from hearing said case; and to order the dismissal thereof for lack of cause of action as private respondent (petitioner therein, and who shall hereafter be referred to as Agda) has not exhausted all administrative remedies available to him.

In Our resolution of 12 April 1989 2 We required respondents to comment on the petition and issued a Temporary Restraining Order effective as of that date and continuing until otherwise ordered by the Court.

The factual antecedents as culled from the Petition in this case and the Amended Petition of Agda in Civil Case No. 88-577 are as follows:

On 2 January 1984, Honorable Cesar Lanuza, then Administrator of the Fiber Development Authority (FIDA for short), an agency attached to the Department of Agriculture, appointed Agda as CHIEF FIBER DEVELOPMENT OFFICER (Range 73) of the FIDA effective upon assumption of office. 3

This appointment does not indicate any specific station or place of assignment.

Under Special Order No. 29, series of 1984, dated 2 January 1984, which was to take effect immediately and to "remain in force until revoked," Administrator Lanuza designated Agda as "Acting Regional Administrator for FIDA Regions I and II." 4

In Special Order No. 219 dated 13 November 1987, series of 1987, Administrator Lanuza "temporarily re-assigned" Agda, "in the interest of the service," at the main office of the Administrator to perform special functions which may be assigned to him, and one Mr. Epitacio Lanuza, Jr., Assistant Fiber Regional Administrator, was designated Officer in Charge of FIDA Region I. 5

On 9 December 1987 Agda prepared for filing with the Civil Service Commission, the Secretary of the Department of Agriculture, and the Commission on Audit an Urgent Petition To Stop Implementation and Nullify Special Order No. 219, s. '87, alleging therein that the Special Order is (a) devoid of legal basis as it does not preserve and maintain a status quo before the controversy, (b) against the interest of public service considering that Epitacio Lanuza has been cited for two cases both involving dishonesty, abuse of privileges and character unbecoming a government official, (c) improper, inappropriate and devoid of moral justification, and (d) a violation of Civil Service rules and regulation considering that it violates the rule on nepotism since Epitacio Lanuza and Administrator Lanuza are cousins. 6 The copy of the Civil Service Commission was personally indorsed to it by Agda on 14 December 1987 for its "proper resolution, perusal and appropriate action." The Merit Systems Protection Board indorsed it on 21

January 1988 to the Secretary of the Department of Agriculture for comment and/or appropriate action. 7

Earlier however, or on 11 December 1987, by Special Order No. 239, series of 1987, Administrator Lanuza designated Mr. Wilfredo Seguritan, Supervising Fiber Development Officer, as Officer in Charge of FIDA Region I vice Mr. Epitacio Lanuza, Jr., who was ordered relieved as such pending the final determination of the case filed against him by the Board of Personnel Inquiry of the Department of Agriculture. 8

On 7 January 1988, herein petitioner (hereafter referred to as Teotico), as Acting Administrator of FIDA issued a Memorandum to Agda directing him to immediately submit his development programs for Region I for the years 1988 to 1993 and his proposals concerning the potentials for sericulture and the maguey industry in the Region. 9

In his 1st indorsement of 12 January 1988, Agda returned the aforesaid Memorandum to Teotico with the comment that it is in the best interest of the service that submission of the required proposals be deferred since Special Order No. 219 had re-assigned him to FIDA Central Office where "he now reports up to the present," while Wilfredo Seguritan, per Special Order No. 239, is the OIC of FIDA for the Region. He suggested, however, that if compliance is imperative, Special Order No. 219 should be reconsidered and set aside. 10

On 2 March 1988 Teotico issued a Memorandum to Agda informing him that although Special Order No. 219 instructed him to report to the Office of the Administrator, he has neither been seen nor officially heard from during the past several weeks and directing him to submit not later than 4 March 1988 an official clarification on his whereabouts and accomplishments for the past three weeks. 11

In his Reply of 9 March 1988 Agda reminded Teotico that his urgent petition to stop the Implementation of Special Order No. 219 is still unresolved; consequently, its implementation should be held in abeyance; and, as regards his whereabouts, he referred Teotico to the logbook kept by the FIDA guard and certificates of appearance "attached from the respective offices during the past three (3) weeks." 12

On 9 March 1988 FIDA Region I OIC, Mr. Seguritan, requested Teotico to require Agda to turn over to him (Seguritan) the keys of the vault in FIDA Region I "for the safekeeping of our blank cheeks, official receipts, approved checks but not yet issued to payee creditors, salaries and other vital official

documents of the Region"; 13 in a routing slip dated 11 March 1988, Teotico referred the request to Agda with the note: "For immediate compliance pls. so as not to hamper the conduct of our operations and service in Region I." 14

On 16 March 1988 Agda indorsed the above routing slip request to the Secretary of the Department of Agriculture wherein he admits that he has the key of the safety vault, but impliedly asserts that he will not yield it to anybody alleging that his petition to stop the implementation of Special Order No. 219 and to nullify it is still unresolved and, besides, the intended re-assignment is merely temporary; hence, it would be in keeping with substantial justice if a status quo of things be maintained. He also asks that the urgent petition be resolved and that meanwhile the directive to turn over the keys be held in abeyance. 15

On 23 March 1988 Teotico formally charged Agda for insubordination and conduct prejudical to the best interest of the service for, among others, his failure to comply with the memorandum of January 7, 1988 and with the routing slip request of 11 March 1988. 16

On 4 April 1988 Teotico placed Agda under preventive suspension pursuant to his Special Order No. 74, to wit:

Pursuant to Section (sic) 41 and 42 of P.D. 807, Mr. Democrito Agda, Sr. is placed under preventive suspension for the following reasons:

a) grave misconduct and gross insubordination—for refusal to turn over the keys to the safe in Region I. With the considerable amount of cash advances being handled in the region, Mr. Agda's refusal to turn over said keys has become prejudicial to the best interests of the service;

b) neglect in the performance of duty—for his refusal to report to the office of the Administrator and his refusal to accept assignment claiming that it is a form of harassment since he still has a pending unresolved petition; and

c) pending an investigation in some instances involving falsification of public documents and instances of possible malversation of funds for services and maintenance and operating expenses in Region I as per results of the recent FIDA Management Audit.

In this regard, the cashier is instructed to withhold the salary of Mr. Agda.

This order takes effect upon receipt of this memorandum and shall remain in force unless earlier revoked or until the cases involving Mr. Agda are resolved. 17

On 8 April 1988 Agda asked Teotico for an extension of twenty days from 11 April 1988 within which to submit his answer to the formal charge; 18 however, in his memorandum of 11 April 1988, Teotico granted him an extension of only five days from receipt thereof. 19 Also on 11 April, Teotico issued Special Order No. 26 reconstituting the Committee on Adjudication of Cases FIDA-AC headed by Senior State Prosecutor Hipolita Ordinario of the Department of Justice. 20

On 13 April 1988 counsel for Agda, Atty. Ramon Miranda, submitted a letter requesting for an extension of fifteen days to file the answer. 21 In the letter of Senior State Prosecutor Ordinario of 14 April 1988, Agda, through his counsel, was given until 21 April 1988 within which to file the answer. 22

It likewise appears that on 13 April 1988 Agda sent a letter to the Commission on Elections 23 inquiring if Special Order No. 219, series of 1987, of Administrator Lanuza was referred and submitted to it for approval three days before its implementation. In a letter dated 14 April 1988, Atty. Horacio SJ Apostol, Manager of the Law Department of the Commission, informed private respondent that "as of this date, records of the Department do not show that aforesaid Special Order was submitted or referred to this Commission for approval." 24

On 18 April 1988 Agda filed with the court below in Civil Case No. 88-577 his Amended Petition 25 for Certiorari, Prohibition and Injunction with preliminary injunction and restraining order against Teotico and the three (3) members of the FIDA-AC alleging, in substance, that Special Order No. 219 of 13 November 1987 issued by then Fida Administrator Lanuza is null and void for having been issued in violation of Section 48 of P.D. No. 807 (Civil Service Decree) which prohibits the detail or re-assignment of civil service personnel within three months before an election and Section 261(h) of Batas Pambansa Blg 881 (The Omnibus Election Code) which prohibits transfer or detail of officers and employees in the civil service within the election period except upon prior approval of the Commission on Elections, and that all succeeding orders or memoranda issued in connection with or by reason of such Special Order or in implementation thereof are likewise null and void. The election referred to was the January 18, 1988 local election. He further alleges therein that he "is filing" with the COMELEC criminal charges for

violation of Sections 3, 261(h) and 264 of B. P. No. 881 against former Administrator Lanuza and Teotico. He prays inter alia, that the court declare null and void and set aside Special Order No. 219, Teotico's Memoranda of 7 January, 2 March, and 11 March, 1988, the Formal Charges of 23 March, the preventive suspension of 4 April, Special Order No. 86, the Memorandum of 11 April 1988, and Ordinario's letter of 14 April 1988, and the formal investigation to be conducted on the charge against him.

On 18 April 1988 respondent Judge issued a restraining order directing respondents therein to refrain from enforcing Annexes "E", "I", "M", "O", "R", "S", and "Z" of the amended petition until further orders of the court and setting the hearing of the application for a writ of preliminary injunction on 26 April

1988. 26

On 2 May 1988 Teotico and his co-respondents in the court below filed, through the office of the Solicitor General, a motion to dismiss the case and opposition to the issuance of a writ of preliminary injunction 27 alleging that the petition is premature for failure to exhaust administrative remedies and patently lacks merit and is merely intended to derail the administrative investigation against Agda. Movants set the hearing thereof on 5 May 1988.

On 4 May 1988 Agda filed an opposition to the motion to dismiss and memorandum in support of his application for a writ of preliminary injunction. 28

On 11 May 1988 respondent Judge issued an Order granting the application for a writ of preliminary injunction upon the filing of a bond of P50,000. 00 29 on the basis of the following findings:

xxx xxx xxx

After careful consideration of the pleadings and their annexes filed by the parties, this Court finds, to wit: the petitioner was appointed on June 16, 1984, as Chief, Fiber Industry Development Authority by Cesar C. Lanuza, former Administrator of FIDA and was assigned in Regions 1 and 2 with office at San Fernando, La Union; that on November 13, 1987, three months before the local elections, which was held on January 18, 1987, the petitioner was reassigned by former FIDA Administrator Lanuza to the FIDA main office and designated Epitacio E. Lanuza, Jr. as officer-in-charge (OIC) of FIDA Region 1; that on December 15, 1987, petitioner requested the Civil Service Commission (CSC) to stay the

implementation of Special Order No. 219; that on January 7, 1988, respondent Teotico implemented said Special Order 219, despite the fact that petitioner requested the Civil Service Commission to stay implementation of the said Special Order 219; that on January 12, 1988, petitioner requested the respondent Teotico to defer the implementation of said Special Order No. 219; that on March 2, 1988, respondent Teotico again implemented Special Order 219, requiring petitioner to submit his accomplishment report; that on March 9, 1988, petitioner requested respondent Teotico to defer the implementation of said special order, considering that the same has not yet been resolved by the Secretary of Agriculture; that on December 11, 1987, former FIDA Administrator designated Wilfredo G. Siguritan as officer-in-charge of FIDA Region 1; that on March 9, 1988, FIDA Region 1 administrator Siguritan requested the petitioner through respondent Teotico to require petitioner to turn over to him the keys of the vault in FIDA Region 1; that on March 14, 1988, respondent Teotico implemented Special Order No. 219, requiring petitioner to turn over said keys to OIC Seguritan; that on March 16, 1988, petitioner requested the Secretary of Agriculture to defer the implementation of said special order pending resolution of said office; that on March 23, 1988, respondent Teotico implemented Special Order 219 by instituting administrative charges against petitioner for insubordination prejudicial to the best interest of the service; that on April 4, 1988, respondent Teotico placed the petitioner under preventive suspension, effective April 6, 1988; that on April 8, 1988, petitioner requested respondent Teotico to give him twenty (20) days from April 11, 1988, within which to submit his explanation to the formal administrative charges.

xxx xxx xxx

After careful consideration of the allegations of the facts in this case, this Court believes that petitioner was denied due process of law. The fact that petitioner informed respondent Teotico to stay and/or defer the implementation of Special Order No. 219, considering that the same is still pending before the Secretary of Agriculture, despite of which, respondents, more particularly, Teotico, in grave abuse of discretion whimsical and capricious, tantamounting (sic) to the denial of due process of law to the petitioner, implemented the same and aggravated by the fact that respondents Teotico filed insubordination charges against the petitioner. This court believes, that actuations of the respondents in railroading the request of the petitioner to stay the implementation of Special Order No. 219 tantamounts to the denial of due process of law as mandated by the new (C)onstitution, which falls under one of the principle of exhaustion of administrative remedies. (New Filipino Maritime Agencies, Inc. vs. Rivera, L-5359-60, June 15, 1978) (De Lara, et al. vs. Cloribin, et al., G.R. No. L-21763, May 31, 1965).

It does not appear from the records that Agda presented evidence at a hearing on the application for a writ of preliminary injunction. On the contrary, as reflected in the above-quoted order of respondent

Judge, the writ was issued on the basis of his "consideration of the pleadings and their annexes filed by the parties."

On 17 May 1988, respondent Judge issued a Writ of Preliminary Preventive or Prohibitory Injunction 30 restraining Teotico and his co-respondents from enforcing Annexes "E", "I", "K", "M", "O", "R", "S", and "Z" of the amended petition.

On 2 June 1988 Teotico and his co-respondents below filed a motion, dated 31 May 1988, to reconsider the 11 May Order alleging therein that the bases of the findings of denial of due process are not supported by facts; they set the motion for hearing on 10 June 1988. 31

On 2 June 1988 Agda filed a motion to declare respondents below in contempt for refusing to comply with the writ . 32 Then on 17 June 1988 he filed his opposition 33 to the motion for reconsideration.

Teotico and his co-respondents filed on 17 June 1988 their opposition to the motion to declare them in contempt of court. 34

The motion for contempt was ultimately denied in the Order of respondent Judge of 8 September 1988. 35

On September 23, 1988 Agda filed a motion to reconsider the 8 September Order. 36

In his Order of 16 December 1988, 37 respondent Judge held that Teotico and his co-respondents cannot be held for contempt; however they were directed to comply with the Order of 11 May 1988 and Teotico was specifically ordered "to immediately reinstate the petitioner, Democrito O. Agda, Sr., from (sic) his previous position as Fiber Regional Administrator, FIDA Region I, with full back wages and allowances mandated by law."

On 22 December 1988 Teotico and his co-respondents filed a motion to reconsider the above 16 December 1988 Order stating therein that it would be premature for the court to order them to comply with the 11 May Order before their motion for reconsideration is finally resolved and they pray that the

motion for reconsideration dated 2 June 1988 be resolved and that further action on its 16 December Order be deferred until resolution of the motion. 38

On 29 December 1988 respondent Judge issued an Order 39 denying the motion for reconsideration filed on 2 June and the motion of 22 December 1988 and directing Teotico to comply with the Order of 16 December 1988 immediately upon receipt of said Order of 29 December.

On 5 January 1989 Teotico and his co-respondents filed a motion for reconsideration/clarification, alleging, inter alia, that there is no basis for ordering Teotico to reinstate Agda with full back wages and allowances since not even the Order of 11 May granting the motion for preliminary injunction ordains the same. 40 But respondent Judge also denied this motion in his Order of 14 February 1989. 41

Finding no other avenue of relief in the court below, petitioner filed this petition on 27 March 1989 submitting to Us the following grounds:

I

Respondent Judge acted with grave abuse of discretion when he ordered petitioner, allegedly in compliance with the writ of injunction issued, to reinstate respondent Agda to his previous position as Fiber Regional Administrator FIDA Region I with full backwages and allowances notwithstanding that such act was not mandated or even mentioned in the prohibitory injunctive writ.

II

Respondent Judge acted with grave abuse of discretion when he refused to dismiss respondent's petition in Civil Case No. 88-577 despite his finding that respondent has already availed of an administrative remedy which is pending resolution by the Civil Service Commission.

III

Respondent Judge acted with grave abuse of discretion when he issued a writ of preliminary injunction dated May 11, 1988 without hearing on the merits.

In compliance with Our resolution of 12 April 1989, herein respondents filed their Comment on 2 May 1989.

As We stated in the introductory portion of this Decision, in the resolution of 29 May 1989 We gave due course to the petition and required the parties to submit their Memoranda, which they complied with.

The petition is impressed with merit.

Respondent Judge clearly acted with grave abuse of discretion in taking cognizance of Civil Case No. 88-577, in deliberately failing to act on the motion to dismiss, in issuing a writ of preliminary injunction, and in ordering the "reinstatement" of Agda, "as Fiber Regional Administrator, FIDA Region I, with full back wages and allowances mandated by law."

Agda was not appointed as Fiber Regional Administrator, FIDA Region I, but as CHIEF FIBER DEVELOPMENT OFFICER; he was not appointed to any specific station. 42 He was merely designated as Acting Regional Administrator For FIDA Regions I and II. 43

Not having been appointed to any specific station, he could be tranferred or assigned to any other place by the head of office where in the opinion of the latter his services may be utilized more effectively. 44

In Ibañez vs. COMELEC, 45 ., We held:

Assayed upon the foregoing legal crucible the petitioner's case suffers an initial set back. The appointments upon which they respectively anchor their claim state that they were merely appointed as "Election Registrars in the Commission on Elections. . . . ." Therefore, there can be no gainsaying the fact that the petitioners were not appointed to, and consequently, not entitled to any security of tenure or permanence in, any specific station. On the general principle, they may be transferred as the exigencies of the service require. They ordinarily have no right to complain against any change of assignment. 46

In the latest case of Department of Education, Culture and Sports, et al. vs. The Honorable Court of Appeals, et al., 183 SCRA 555, 562, We held:

The appointment of Navarro as principal does not refer to any particular station or school. As such, she could be assigned to any station and she is not entitled to stay permanently at any specific school. (Bongbong vs. Parado, 57 SCRA 623). When she was assigned to the Carlos Albert High School, it would not have been with the intention to let her stay in said school permanently. Otherwise, her appointment would have so stated. Consequently, she may be assigned to any station or school in Quezon City as the exigencies of public service require even without her consent.

Moreover, it should be borne in mind that Special Order No. 29 of 2 January 1984 merely designated Agda as Acting Regional Administrator for Regions I and II. Such being the case, the rule enunciated in Cuadra vs. Cordova etc., 103 Phil. 391, on temporary appointments or appointments in an acting capacity that they are terminable at the pleasure of the appointing authority, is applicable to Agda. He can neither claim a vested right to the station to which he was assigned nor to security of tenure thereat.

Accordingly, private respondent could be re-assigned to any place and Special Order No. 219 dated 13 November 1987 reassigning private respondent at the Office of the Administrator of the FIDA "in the interest of the service" was in order. Although denominated as "reassignment", it was in fact a mere detail in that office.

The Civil Service Decree, P.D. No. 807, allows transfer, detail and re-assignment. 47 If the employee concerned believes that there is no justification therefore, he "may appeal his case to" the Civil Service Commission. Unless otherwise ordered by the Commission, the decision to detail an employee shall be executory. Agda invoked the appellate jurisdiction of the Commission when he filed his Urgent Petition To Stay Implementation and Nullify the Special Order in question with the Civil Service Commission. 48 It does not, however, appear to Us that he exerted genuine and sincere efforts to obtain an expeditious resolution thereof What appears to be clear is that he used its pendency as an excuse for his refusal to comply with the memorandum of Teotico of 7 January 1988 and the routing slip request of 11 March 1988 for the key to the safety vault.

We are not persuaded by Agda's claim that the questioned detail was done in violation of Section 261(h) of Batas Pambansa Blg. 881 (Omnibus Election Code) Considering that (a) he raised this matter for the first time only in his Amended Petition, or five (5) months after the issuance of the Special Order. No evidence has been presented, or at least strongly and convincingly suggested, to prove or show that no prior approval was obtained by Administrator Lanuza from the COMELEC for such detail, or that a case for violation of Section 261(h) was in fact filed against Lanuza or Teotico. All that Agda can show are his alleged letter to the COMELEC to inquire if Special Order No. 219 had been referred to it and an alleged answer dated 14 April 1988 of Atty. Horacio SJ Apostol, Manager of the Law Department of the Commission, to the effect that the records of the Department do not show, as of that date, that the Special Order was submitted or referred to the Commission. The latter is not conclusive proof that no prior authority was in fact obtained by Administrator Lanuza for the reassignment or detail of Agda. No law requires the submission. to the COMELEC of special orders reassigning or detailing employees within the prohibited period. What is needed is "prior authority," the request for which and its approval may be in separate documents or papers.

Moreover, although Agda alleges in his amended petition that:

11.20. Petitioner is filing criminal charges for violations of Secs. 3, 261(h) and 264 of B.P. 881 against former FIDA Administrator Lanuza and respondent Teotico in the COMELEC." (Emphasis supplied)

none of his subsequent pleadings both before the lower court and before Us disclose that he had in fact filed such charges. Obviously, said allegation was a clever attempt to show a semblance of a valid grievance.

Furthermore, even in the cases of transfer or detail within the probihited period prior to an election, an aggrieved party is provided an appropriate administrative remedy. Section 6 of Rule VI of the Civil Service Rules on Personnel Actions and Policies provides:

Sec. 6. Except when the exigencies of the service require, an official or employee of the government may not be ordered detailed or reassigned during the three-month period before any local or national election, and if he believes that the order for his detail or reassignment is due to harassment, coercion, intimidation, or other personal reasons, he may appeal the order to the Commission. Until this is proven, however, the order is presumed to be in the interest of the service and notwithstanding the appeal, the decision to detail or reassign him shall be executory, but the Commission may order deferment of suspension of the detail or reassignment ex parte."

Agda made no attempt to avail of this remedy. In his Urgent Petition to Stay Implementation and Nullify Special Order No. 219, nothing is mentioned about a violation of the ban on transfer or detail. The reason seems too obvious. Until he filed the Amended Petition before the court below he did not consider his re-assignment per Special Order No. 219 as a violation of the ban on transfer or detail during the three-month period before the election.

Not having yet fully exhausted the existing adequate administrative remedy which he already took advantage of, Agda cannot be permitted to abandon it at his chosen time and leisure and invoke the jurisdiction of regular courts. As aptly summarized:

Within the administrative forum the law may provide for review of decisions by higher authorities. Before a party can be allowed to invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress afforded him. There are both legal and practical reasons for this. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opporturity to act and correct the errors committed in the administrative forum. 49

The doctrine of exhaustion of administrative remedies is well-entrenched in this jurisdiction and a host of cases has buttressed its stability. 50 There are, of course, recognized exceptions thereto, but, unfortunately, private respondent cannot seek safe refuge under their protective mantle, for in respect to the remedy provided for in Section 24(c) of P.D. No. 807, which is also the remedy provided for in Section 24(f), availment thereof is indispensable for the viability of any judicial action. As we held in Department of Education, Culture and Sports, et al. vs. The Honorable Court of Appeals, et al., supra:

Finally, respondent Navarro has not exhausted administrative remedies as she did not elevate the matter of her transfer to the Civil Service Commission in accordance with Section 24(c), P.D. No. 807, otherwise known as the Civil Service Decree, which provides:

xxx xxx xxx

By not appealing her case to the Civil Service Commission before filing Special Civil Action No Q-37025, respondent Navarro is indubitably without cause of action.

Respondent Judge, as clearly shown in his Order of 11 May 1988, was fully aware of Agda's urgent petition before the Civil Service Commission to suspend its implementation of Special Order No. 219 and to nullify the same. He had, therefore, no other business to do except to grant the motion to dismiss. He should have, forthwith, stayed his hands until the administrative processes had been completed. 51 Yet, for reasons only known to him, which We cannot divine at, he did not do so. On the contrary, he granted the application for a writ of preliminary injunction and issued the writ on 17 May 1988.

The writ was improvidently and capriciously issued. The issuance of the writ, although addressed to the sound discretion of the court, is conditioned on the existence of a clear and positive right which should be protected. 52 Considering that the amended petition should have been dismissed outright because Agda prematurely invoked the jurisdiction of the court in view of his appeal to the Civil Service Commission, it follows that, even if he had a right, no protection was available from the court below. But even if We disregard for the moment the above weakness of the amended petition and consider, as the respondent Judge did, "the pleadings and their annexes," the inescapable action that should follow would be denial of the application for the issuance of the writ. The pleadings and the annexes do not at all demonstrate a clear and positive right for Agda, for as discussed above, by the very nature of his appointment he had no security of tenure in the station to where he was assigned on 2 January 1984; besides, his designation as acting Regional Administrator for FIDA Regions I and II was terminable at any time at the pleasure of the head of office. Moreover, as could be gleaned from the annexes of the Amended Petition, Agda impliedly accepted his re-assignment to the Control Office of FIDA To Teotico's Memorandum of January 1988 addressed to Agda as "Regional Administrator" which required him to submit his development programs for Region I (1988-1993) and his proposals for sericulture and the maguey industry in said Region, Agda, in his indorsement of 12 January 1-988 claims and admits that "this representation was reassigned to FIDA Central Office where he now reports up to the present" and that "Mr. Wilfredo Seguritan . . . remains up to the present as the OIC of FIDA for the said Region." In this indorsement Agda wrote below his signature the following: (Detailed to Central Office). To Teotico's Memorandum of 2 March 1988 requiring him to submit an official clarification on his whereabouts and his accomplishments for the past three weeks since he had not been seen or officially heard from, Agda referred the former to the record (log book) kept by the FIDA Guard and certificates of appearance. Clearly then, as of the filing of the Amended Petition, Special Order No. 219 was a fait accompli. Acts already consummated cannot be enjoined by preliminary injunction. 53

The respondent Judge did not stop there. As complained by Teotico, on 16 December 1988 the former issued an Order wherein although he denied the motion for the reconsideration of his 8 September 1988 Order denying the motion for contempt, he ordered Teotico to immediately reinstate Agda "from

(sic) his previous position as Fiber Regional Administrator, FIDA Region I, with full back wages and allowances mandated by law." This, in effect, amounted to a mandatory injunction, issued without a hearing and in violation of Section 5 of Rule 58 of the Rules of Court. There was no basis for its issuance. A mandatory injunction may only be issued upon a showing that the invasion of the right is material and substantial; the right of complainant is clear and unmistakable; and there is an urgent and permanent necessity for the writ to prevent serious damage. 54 They have not been shown to exist in this case.

Even if the 16 December reinstatement order should be construed to be directed against the preventive suspension order issued by Teotico on 4 April 1988, respondent Judge clearly capriciously breached the limits of his discretion for nowhere in his amended petition has Agda attacked its validity or legality on any other ground than its being issued to implement Special Order No. 219, 55 which he claims was issued in violation of the pertinent provisions of the Omnibus Election Code and the Civil Service Decree prohibiting transfer or reassignment of civil service officials and employees within three months before the local election of January 18, 1988. He assailed the suspension order not on the ground that Teotico does not have the authority to file the formal charge and to preventively suspend him, but solely on the basis of his self-serving claim that both were issued without or in excess of jurisdiction or with grave abuse of discretion because they were meant to implement Special Order No. 219.

Preventive suspension is allowed under Section 41 of P.D. No. 807 which reads:

Sec. 41. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

However, per Section 42 of the same decree, if the administrative cases against the suspended officer or employee, who is not a Presidential appointee, is not finally decided by the disciplining authority within ninety days after date of suspension, he shall be automatically reinstated in the service provided that when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension.

In the instant case, by Agda's own act and the cooperation of respondent Judge, the administrative case against the former is not yet even ready for hearing. He has not filed his Answer, although he was given until 21 April 1988 within which to do so.

Lastly, We hold that both the preliminary injunction and the reinstatement order issued by respondent Judge practically granted the main relief prayed for by Agda even before the hearing on the case on the merits. In Obias, et al., vs. Hon. Borja, et al., 136 SCRA 687, We ruled that respondent judge acted with grave abuse of discretion in issuing a writ of preliminary injunction which in effect practically granted the principal relief sought in the Mandamus case. The reason for this is that such issuance "would, in effect, be a prejudgment of the main case and a reversal of the rule on the burden of proof since it would assume the proposition which the petitioner is inceptively bound to prove. 56

The foregoing conclusions render unnecessary a discussion on other matters raised in this case.

WHEREFORE, the Petition is GRANTED. The Orders of respondent Judge of 11 May 1988, 16 December 1988, 29 December 1988 and 14 February 1989 and the Writ of Injunction issued on 17 May 1987 in Civil Case No. 88-577 entitled Democrito D. Agda, Sr., vs. Joaquin M. Teotico, et al., are SET ASIDE and said Civil Case is hereby ordered DISMISSED. With costs against private respondent.

SO ORDERED.

REINSTATEMENT

GLORIA V. JUDGE SALVADOR DE GUZMAN

G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and BOARD OF TRUSTEES of PSCA, petitioners,

vs.

HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on a perceived, albeit mistaken, right to reinstatement.

Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively.

Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services".

Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cariño who was the DECS Secretary. The case for reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria.

Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under Republic Act

No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the named private respondents who were the petitioners in the court below.

The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"?

Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees themselves and the President of the college. In line with this authority, the PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions.

Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31, 1992. This appointment went along the line enunciated by the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary appointments were good and renewable only up to 1992.

On March 24, 1992, private respondent Rosario V. Cerillo was

relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services".

On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner

Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cariño on June 8, 1992.

Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. Had private respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24, 1992, her temporary appointment as such was supposed to have lasted until December 31, 1992.

On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA administration, the herein private respondents filed before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions.

In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus will not lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be unavailing to private respondents because of their failure to exhaust administrative remedies.

We find the petition to be impressed with merit.

I

The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts and the law. Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement.

Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed.

At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only 6.

II

Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be impermissible. In the first place,

Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest this dismissal possibly because the position of Board Secretary II is primarily confidential and the Board of Trustees, when finding her, the incumbent to the position, to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without any ripple and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts called for by the designation.

The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other, came about in this manner:

The Civil Service Commission, mandating a policy, wrote petitioner

Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a pertinent portion of the letter:

xxx xxx xxx

Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments subject to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service policies. You may, therefore, advise all your temporary personnel to take civil service examinations in order to be eligible for appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments. This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot be terminated from the service.

The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an appointee from among those who possessed 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. 9

It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure the maintenance of an honest and

efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government. 11

We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus.

Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. 13

It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees.

Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this pontification by stating that:

The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his discretion absent any showing of grave abuse of discretion.

III

The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).

We agree with respondent Judge's disquisition on this point:

To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone.

IV

Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision of respondent Judge has become moot and academic. At any rate, the Court holds that the said award could not have been imposed because, while it was directly ordered in the dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned decision. Clear on this point is Our decision in Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was stated that "The award of attorney's fees must be disallowed for want of factual and legal premise in the text of the decision rendered by the court of origin and the appellate court as well."

WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it ordered the reinstatement of

Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of respondent

Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The temporary restraining order/preliminary injunction heretofore issued is hereby made permanent.

SO ORDERED.

EFFECT OF PARDON

MONSANTO VS FACTORAN

G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner,

vs.

FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment.

In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite.

In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987.

Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4

It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law.

Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a

At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not

only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and

the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." 23

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is

rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26

The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. 27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back

salaries for the entire period of her suspension, and that she be not required to pay her proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well as her other claims, because of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted "an absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein expressly provides that the right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the petitioner.

It is a recognized principle in public law — hopefully to be honored more in its compliance rather than in its breach — that a "public office is a public trust." The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and specific language. To require this would not be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a standard printed form which states in printed words that it was "an absolute and unconditional pardon [which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the right to hold public office or employment are commonly regarded as "political rights," 2 it must be noted that

there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in printer's ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction on the pardoning power of the President. The limitation on the President's pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well as her other claims, because of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by

the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted "an absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein expressly provides that the right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the petitioner.

It is a recognized principle in public law-hopefully to be honored more in its compliance rather than in its breach that a "public office is a public trust." The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and specific language. To require this would not be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a standard printed form which states in printed words that it was "an absolute and unconditional pardon [which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the right to hold public office or employment are commonly regarded as "political rights," 2 it must be noted that there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in printer's ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction on the pardoning power of the President. The limitation on the President's pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

SABELLO VS DEPARTMENT OF EDUCATION

G.R. No. 87687 December 26, 1989

ISABELO T. SABELLO, petitioner,

vs.

DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

GANCAYCO, J.:

In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide a unique issue of which shall be given more importance the legal technicalities of the law or the fundamental principles of justice and fairness.

The facts are not in dispute, as follows:

Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the Talisay Barangay High School of the Division of Gingoog City. The barangay high school was in deficit at that time due to the fact that the students could hardly pay for their monthly tuition fees. Since at that time also, the President of the Philippines who was earnestly campaining was giving aid in the amount of P 2,000.00 for each barrio, the barrio council through proper resolutions alloted the amount of P 840.00 to cover up for the salaries of the high school teachers, with the honest thought in mind that the barrio high school was a barrio project and as such therefore, was entitled to its share of the RICD fund in question. The only part that the herein petitioner played was his being authorized by the said barrio council to withdraw the above amount and which was subsequently deposited in the City Treasurer's Office in the name of the Talisay Barrio High School. That was a grave error on the part of the herein petitioner as it involves the very intricacies in the disbursement of government funds and of its technicalities. Thus, the herein petitioner, together with the barrio captain, were charged of the violation of Republic Act 3019, and both were convicted to suffer a sentence of one year and disqualification to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila. The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case of insolvency in the payment of one-half of the amount being involved. The herein petitioner, being financially battered, could no longer hire a lawyer to proceed to the highest court of the land.

Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the Republic of the Philippines, restoring him to 'full civil and political rights.' With this instrument on hand, the herein petitioner applied for reinstatement to the government service, only to be reinstated to the wrong position of a mere classroom teacher and not to his former position as Elementary School Principal I. 1

Petitioner now prays to this Court for the following relief:

1. (that he be) Reinstated to his former position as Elementary School Principal I;

2. His government services be made continuous since September 10, 1948 which is his original appointment until the present time;

3. (that he be) Given his back salaries corresponding to the period from September 1, 1971 to November 23,1982;

4. That all his service credits duly earned be restored;

5. And, that all other rights and privileges not mentioned herein shall also be granted. (Petition, p. 2) 2

The Solicitor General comments that there is no justiciable controversy in this case because the issue involved is whether or not petitioner merits reappointment to the position he held prior to his conviction that of Elementary Principal I. The Division of City Schools, Gingoog City, Region X, Department of Education and Culture, did not act on petitioner's request. Hence, the present petition.

We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be restored to the same position he was in before he was convicted on a mere technical error and for which he was given an absolute pardon.

This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is a definite and concrete controversy touching the legal relations of parties having adverse legal relations.

This is a real and substantial controversy admitting of specific relief through a court decree that is conclusive in character. The case does not call for a mere opinion or advise, but for affirmative relief .

As a general rule, the question of whether or not petitioner should be reappointed to his former position is a matter of discretion of the appointing authority, but under the circumstances of this case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer a matter of discretion on the part of the appointing power, but discretion tempered with fairness and justice.

As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer is that its officials can be sued for alleged grave errors in their official acts. Again, We ignore technicality by considering this a suit against the officials of this government agency.

Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty denies him the services of a lawyer, We also set aside the requirement of exhaustion of administrative remedies and resolved to go direct to the merits of the petition.

In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or ineligibility from public office forms part of the punishment prescribed under the penal code and that pardon frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a public office it does not entitle him to automatic reinstatement. He should apply for reappointment to said office.

In the present case after his absolute pardon, petitioner was reinstated to the service as a classroom teacher by the Department of Education, Culture and Sports.

As there are no circumstances that would warrant the diminution in his rank, justice and equity dictate that he be returned to his former position of Elementary School Principal I and not to that of a mere classroom teacher.

However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982 since in Monsanto 4 this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the government service upon his conviction for an offense. Thus, although his

reinstatement had been duly authorized, it did not thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charge against them.

In the same light, the Court cannot decree that his government service be made continuous from September 10, 1948 to the present when it is not. At any rate when he reaches the compulsory age of retirement, he shall get the appropriate retirement benefits as an Elementary School Principal I and not as a mere classroom teacher.

WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture and Sports and/or his duly authorized representative is hereby directed to appoint petitioner to the position of Elementary School Principal I or it equivalent, without pronouncement as to cost. This decision is immediately executory.

SO ORDERED.

GARCIA VS COA

G.R. No. 75025 September 14, 1993

VICENTE GARCIA, petitioner,

vs.

THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.

Eulogio B. Alzaga for petitioner.

The Solicitor General for respondents.

BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim.

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged.

Consequently, petitioner sought reinstatement to his former position

in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency.

On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement

dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service.

It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).

Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render

any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule.

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. 3

Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances:

Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. 4

From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening:

In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia.

Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that —

instead of coming forward to the defense of the accused who actually was authorized to uproot or recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission.

In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, 6 we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. 7 When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt.

In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission.

The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency.

Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. 9 There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." 10 In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages.

After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification.

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.

DETAIL

G.R. No. 86147 February 26, 1990

REPUBLIC OF THE PHILIPPINES, (Department of Education, Culture & Sports, Child & Youth Research Center), and LUZ G. PALATTAO-CORPUZ, petitioners,

vs.

COURT OF APPEALS and JOSE P. LOPEZ, JR., respondents.

G.E. Aragones & Associates for private respondent.

MELENCIO-HERRERA, J.:

This Petition for Review on certiorari seeks the reversal of the Decision of the Court of Appeals (Fourth Division), * dated 7 December 1988, affirming the "Partial Decision" of the Regional Trial Court, Branch 135, Makati, Metro Manila, dated 24 September 1986, ordering petitioner Luz B. Palattao-Corpuz to take official cognizance of the attendance of private respondent Jose P. Lopez, Jr., at the Child and Youth Research Center (CYRC); to pay his salaries and benefits from 23 April 1985 "to date"; and remanding the case to the Court of origin for further proceedings on the issue of damages.

Petitioner Corpuz and Respondent Lopez, Jr., were the former Director and Assistant Director, respectively, of the now defunct Child and Youth Research Center (CYRC) of the Department of Education, Culture and Sports (DECS). Petitioner Corpuz is a Doctor of Medicine while Respondent Lopez is a Bachelor of Laws graduate but not yet a member of the Bar.

Petitioner Republic of the Philippines (DECS/CYRC) has joined Petitioner Corpuz in this case, on the ground that the acts for which she is taken to task by Respondent Lopez have been performed in her official capacity.

The "bad blood" between the parties commenced when Respondent Lopez protested Petitioner Corpuz appointment as CYRC Director on the ground that he had a better right to the position. The dismissal of that protest by the Civil Service Commission was affirmed by this Court. Then followed a series of cases, approximately forty-nine (49) in all, filed by Respondent Lopez against Petitioner Corpuz and/or some of the CYRC Staff before different judicial and administrative fora. The charges ranged from those of graft, grave misconduct, dishonesty, inefficiency, and grave abuse of discretion. Most of the cases were dismissed, however, for having been found to be frivolous except one case before the Ombudsman (TBP-86-00-1) involving the same facts as in this case, which is awaiting the outcome herein.

On 11 July 1984, then MECS Minister Jaime C. Laya "temporarily detailed" Respondent Lopez to the MECS Legal Office until further advice "in the exigencies of the service." Sometime later, he was transferred to the Planning Service Office of the MECS, it appearing that he was facing charges before the Legal Division, which he, however, denied.

The records disclose that on 16 April 1985, Domingo B. Nunez, Research Specialist and Chief of the Intellectual Emotional Development Research Unit of the CYRC, tendered his resignation as such "because I cannot stand the harassment of the Assistant Director, Mr. Jose P. Lopez, is doing to us employees. I am afraid I cannot continue working with dignity and with peace of mind in such situation." In another letter of the same date, Joseph D. de los Santos, Senior Educational Researcher of the CYRC, also reported on an act of harassment on his person by Respondent Lopez and concluding "I doubt whether I can stay long enough with the office with this kind of environment." On 7 May 1985, the "CYRC Staff Personnel and Contractual Employees" of the CYRC wrote the Education Minister calling attention to the "prevailing sick situation in the Office" and complaining against the acts of harassment "being done to the employees of this Office by the Asst. Director, causing more harm than good."

After about 6-1/12 months of re-assignment, Respondent Lopez wrote a letter to Minister Laya expressing his intention to resume his official position as CYRC Assistant Director. Having received no response, he returned to the CYRC as Assistant Director on 18 February 1985 without official authorization.

This prompted Petitioner Corpuz to issue two (2) Memoranda on 21 February 1985: The first was addressed to the CYRC Staff advising that Respondent Lopez would not be considered an active member of the Staff until he first secured the proper authorization for his transfer. The other was addressed to Lopez himself requesting him to submit an official order terminating his "detail." In his reply, dated 22 February 1985, Respondent Lopez insisted on the validity of his resumption of office stating that "no one can be detailed for more than three (3) months without the written consent of the employee

concerned" and that "detailed assignment beyond six (6) months has to be approved by the CSC and the Office of the President." He also admonished Petitioner Corpuz to recall and/or rectify her memoranda.

On 27 February 1985, Petitioner Corpuz again issued two Memoranda, one disputing Respondent Lopez's reply and the other reiterating her stand that until he secured an authorization from the MECS Minister to return to the CYRC, she would not consider him an active member of its Staff.

On 6 March 1985, Respondent Lopez wrote a letter to the then MECS Deputy Minister requesting clarification on the matter. The same advice as to the necessity of prior authorization was given.

On 15 March 1985, Petitioner Corpuz addressed another memorandum to Respondent Lopez insisting on his compliance with her directive and requiring him, effective on the same date, to submit a record of his attendance duly signed by the Chief of the MECS Planning Service or an approved application for leave of absence before. he could be entitled to his salary. Just the same, Petitioner allowed the payment of Respondent's salaries and allowances for the period 18 February 1985 to 22 April 1985, but withheld those corresponding to the period 23 April to 14 August 1985 because of Respondent's refusal to comply with her directive to return to the MECS Central Office.

On 1 April 1985, Respondent Lopez filed a Petition for mandamus with Damages against Petitioner Corpuz, Minister Laya, and the Chief, Administrative Services, before the Regional Trial Court (RTC), Branch 135 of Makati, Metro Manila. During the pendency of the case or, on 7 August 1985, then Minister Laya advised Respondent Lopez that his "temporary detail" in the Planning Service Office of the Ministry had been rectified to "temporary assignment" effective 3 September 1984, to continue until further advice, and that approval from the office should first be secured before returning to the CYRC. Respondent requested such clearance but since it was left unanswered, he returned to the MECS Central Office presumably around 14 August 1985.

On 1 September 1985, Respondent Lopez dropped Minister Laya as defendant in his Second Amended Petition leaving Petitioner Corpuz as the lone defendant.

In a 1st Indorsement, dated 16 October 1985, Petitioner Corpuz was informed by the Deputy Minister of Education that the Ministry had approved the release of Respondent's salaries for the period 23 April to 14 August 1985. This was reiterated by Minister Laya in his Fifth Indorsement, dated 9 December 1985.

Similarly, on 20 March 1986, then Secretary Lourdes Quisumbing ordered such payment but the same was later reconsidered and recalled upon query from Petitioner Corpuz regarding the matter.

On 24 September 1986, the RTC of Makati, Branch 135, rendered a "Partial Decision" ordering Petitioner Corpuz to take official cognizance of Respondent Lopez's attendance at the CYRC: to pay his salaries corresponding to the period from 23 April 1985 "to date"; and setting the case for further hearing to determine the actual amount of damages allegedly sustained by him.

Petitioner appealed to Respondent Court of Appeals. During the pendency thereof, the CYRC was abolished and both Petitioner and Respondent were retired from Government service. Nevertheless, neither one could draw retirement benefits in view of the pendency of this suit.

On 7 December 1988, the Court of Appeals affirmed in toto the appealed RTC judgment.

On 24 February 1989, this Petition was filed, to which we gave due course. We required the filing of Memoranda, the last of which was submitted on 20 October 1989.

The crucial issues for determination are: (1) whether or not Petitioner Corpuz was justified in refusing to take official cognizance of Respondent Lopez's attendance as Assistant Director at the CYRC and in withholding his salaries corresponding to the period; and (2) whether or not she can be held liable in damages for such acts.

Upon the facts, we rule for Petitioner Corpuz.

It will be recalled that Respondent Lopez returned to the CYRC at his own instance without any authorization from higher authorities. Petitioner Corpuz as CYRC Director, officially advised him to secure that clearance, but he adamantly refused to obey a directive from his immediate superior. Under the circumstances, Petitioner Corpuz as head of the office, was left with no alternative but to withhold recognition of his attendance at the CYRC. To maintain discipline in the office, and in the interests of the service, she could do no less.

Respondent Appellate Court, however, affirmed the finding of the Trial Court that the DECS Minister's directive to Respondent Lopez was "defective" in that the term "detail" was used instead of "re-assignment," which would have been the proper terminology. Indeed, a "detail" is the movement from one Department or Agency to another which is temporary in nature (Section 4, Rule VI, Civil Service Rules on Personal Actions and Policies) whereas a "re-assignment" is the movement of an employee from one organizational unit to another in the same Department or Agency (Section 5, Ibid.). Be that as it may, the official intent of the directive was clear to move Respondent Lopez away from the CYRC and locate him in the head office, "in the exigencies of the service." Besides, proper rectification was made by Minister Laya on 7 August 1985 retroactive to 3 September 1984.

Both lower Courts opined, however, that the "re-assignment" was stage-managed by Petitioner Corpuz under the pretext of "exigencies of the service." Notably, the directive to Respondent Lopez was not issued by her but by the Education Minister himself. It is inconceivable that the latter official would have allowed himself to have been used as such an unwitting tool. On the contrary, he must have been aware of the "sick situation" in the CYRC, hence, the re-assignment of Respondent Lopez to another unit in the Education Ministry.

As matters stood, Respondent Lopez brought upon himself the withholding of his salaries. When he reported back to the CYRC on 18 February 1985 he did so at his own instance without prior authorization. He was advised to secure such clearance on 21 February 1985 but he refused. The directive to obtain the same was reiterated on 27 February 1985 by Petitioner Corpuz. Instead of complying, he addressed a letter on 6 March 1985 to the Deputy Minister requesting clarification. He was given the same opinion. On 15 March 1985, he was again reminded and was required to submit a record of his attendance duly signed by the Chief of the MECS Planning Services or an approved application for leave of absence before he could be entitled to his salary. He reacted by stating that the requirement was "superfluous." And when he did comply, discrepancies were discovered between his submissions and those in the CYRC logbook. Respondent Lopez was himself, therefore, recreant in complying with the requirements for the release of his salaries.

It is true that Petitioner Corpuz had issued memoranda, dated 19 December 1985 and 7 January 1986, suggesting that Respondent Lopez withdraw his suit for mandamus in order to expedite the release of his salaries. For this, she deserves censure specially since it was done "against the advice of her counsel." Mitigating such sanction, however, is the provocation given by Respondent Lopez, his open defiance of authority, and oppressive behavior towards his co-employees.

It is inaccurate for Respondent Lopez to allege that he was paid his salaries for 18 February to 22 April 1985 without submission of his official time records. As certified to by the CYRC Disbursing Officer on 22 May 1985, he received his salary for the second half of March 1985 on 2 April 1985 after he submitted his time card for the month of March. It was only from 23 April 1985 to 14 August 1985 that his salaries and allowances were again withheld upon petitioner's instructions after she had received official confirmation from MECS in the latter's 1st Indorsement, dated 22 April 1985, that prior MECS authorization was, in fact, required before he could return to the CYRC. In this connection, it was reversible error, therefore, for both lower Courts to have ordered payment of Respondent's salaries from 23 April 1985 "to date."

Petitioner Corpuz had not acted in bad faith in seeking clarification of the directives to pay issued by the Education Department. Those were given only during the pendency of the case below besides the fact that the order of Secretary Lourdes Quisumbing, who succeeded Minister Laya, to pay Respondent Lopez's salaries was later withdrawn by her for further review.

In fine, Petitioner Corpuz' refusal to take official cognizance of Respondent Lopez's attendance at the CYRC beginning 18 February 1985 was justified because it was clearly unauthorized and in rebellious defiance of a Departmental directive. The Ministry itself came out with a definite position on the matter only around 15 March 1985. Having acted by virtue of her authority to administer the affairs of the defunct CYRC, adjudgment of damages against her is uncalled for as this would virtually be a charge against the Republic of the Philippines, a sovereign state which is not amenable to judgment for monetary claims without its consent (Garcia v. Armed Forces of the Philippines, et al., L-20213, January 31, 1966, 16 SCRA 120; Syquia v. Almeda Lopez, 84 Phil. 312 [1949]; Sarasola v. Trinidad, 40 Phil. 252 [1919]). The mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. For there can be no legal right against the authority which makes the law on which the right depends (Sanders vs. Veridiano II, G.R. No. 46930, 10 June 1988, 162 SCRA 88).

WHEREFORE, this Petition is GRANTED and the Court of Appeals' judgment under review, promulgated on 7 December 1988, is hereby SET ASIDE. No costs.

SO ORDERED.

REASSIGNMENT

REEMPLOYMENT

ORTIZ VS COMELEC

G.R. No. 78957 June 28, 1988

MARIO D. ORTIZ, petitioner,

vs.

COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.

FERNAN, J.:

In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official whose "courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom Constitution may be entitled to retirement benefits under Republic Act No. 1568, as amended.

Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then President Ferdinand E. Marcos "for a term expiring May 17, 1992." 1 He took his oath of office on July 30, 1985.

On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro, petitioner sent President Corazon C. Aquino a letter which reads as follows:

The undersigned Commissioners were appointed to the Commission on Elections on July 30, 1985.

Following the example of Honorable Justices of the Supreme Court, on the premise that we have now a revolutionary government, we hereby place our position at your disposal. 2

Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through Proclamation No. 3, Artide III thereof provides:

SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption.

SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.

SEC. 3. Any public officer or employee separated from the service as a result of the reorganization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.

On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and Commissioners Froilan M. Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein), Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364 approving the application for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven days later, the same body passed Resolution No. 862370 approving the application for retirement of Commissioner Mangontawar B. Guro.

On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their respective resignations, effective immediately." 3 After the presidential acceptance of said "resignations," the new COMELEC was composed of Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B. Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this body that Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications for retirement. They were followed by Commissioner Layosa on August 1, 1986.

To justify their petitions for retirement and their requests for payment of retirement benefits, all seven former COMELEC Commissioners invoked Republic Act No. l568 as amended by Republic Act No. 3595 and re-enacted by Republic Act No. 6118, specifically the following provision:

SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the government; And provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation.

In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked Resolutions Nos. 86-2364 dated April 16, 1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz and Layosa on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as amended" without specifying the reason therefor. 5

Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to the benefits under Republic Act No. 1568, as amended. He averred therein that he did not resign but simply placed his position at the disposal of the President; that he had in fact completed his term as Commissioner by the "change in the term of [his] office and eventual replacement," and that he was entitled to retirement benefits under the aforementioned law because Article 1186 of the Civil Code which states that "the condition [with regard to an obligation] shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment." He invoked the aforequoted provisions of Proclamation No. 3 and cited the cases of former Chief Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr. who were allowed to retire by this Court and receive retirement benefits. 6

Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc resolution of October 1, 1986.** On December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit [COA]. In its memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for comment and recommendation. Having failed to receive any communication from the COA for some six months, on June 3, 1987, petitioner reiterated his appeal thereto. Again, the matter was referred to the COMELEC resident auditor with a request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the COMELEC's "arbitrary and unjust denial" of his claim for retirement benefits and of his subsequent motion for reconsideration constitutes "grave and whimsical abuse of discretion amounting to lack of jurisdiction" which can only be remedied through the instant petition in the absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum, however, petitioner admits that, as correctly stated by the Solicitor General in respondents' comment on the petition, this petition is basically one for a writ of mandamus aimed at compelling both the COMELEC and the COA to approve his claim for retirement benefits. 8

We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding the Solicitor General's contention that action herein is premature as the COA may yet render a decision favorable to the petitioner, We opt to decide this case to shed light on the legal issue presented.

The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office, and, therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement benefits. 9

We disagree. Petitioner's separation from government service as a result of the reorganization ordained by the then nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is defined as 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. 10 To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. 11 Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority. 12

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25,1986 when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in public administration.

Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power.

A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional officials like the petitioner whose removal from office entails an impeachment proceeding. 13 For even if working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal rights as those in reputation and eligibility for other employment. 14

The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no removal but an expiration of his term. 15

As he is deemed to have completed his term of office, petitioner should be considered retired from the service. And, in the absence of proof that he has been found guilty of malfeasance or misfeasance in office or that there is a pending administrative case against him, petitioner is entitled to a life pension under Republic Act No. 1568 as amended and reenacted by Republic Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically Article III, Section 3 thereof which was in effect when he was replaced by the appointment and qualification of a new Commissioner.

Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services performed and his right thereto commences to vest upon his entry into the retirement system and becomes an enforceable obligation in court upon fulfillment of all conditions under which it is to be paid. 16 Similarly, retirement benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in public employment. 17 They serve a public purpose and a primary objective in establishing them is to induce able persons to enter and remain in public employment, and to render faithful and efficient service while so employed. 18

Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than twenty years of service in the government at the time of the retirement, death or resignation of the Auditor General or the Chairman and any Member of the COMELEC. The same length of service was required after Republic Act No. 3473 amended the law. However, Republic Act No. 3595 further amended

Republic Act No. 1568 and the 20-year service requirement was mandated only in case of resignation of the public official covered by the law. Although Republic Act No. 1568, as amended, was inoperative and abolished in Section 9 of Republic Act No. 4968, it was re-enacted under Republic Act No. 6118.

On the respondents' assertion that the retirement law is clear and hence, there is no room for its interpretation, We reiterate the basic principle that, being remedial in character, a statute creating pensions should be liberally construed and administered in favor of the persons intended to be benefited thereby. 19 This is as it should be because the liberal approach aims to achieve the humanitarian purposes of the law in order that the efficiency, security, and well-being of government employees may be enhanced. 20

WHEREFORE, respondent Commission on Elections denial of petitioner's application for retirement benefits is hereby reversed and set aside. The Commission on Audit and other public offices concerned are directed to facilitate the processing and payment of petitioner's retirement benefits.

SO ORDERED.