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PUBLIC OFFICERS and CORPORATIONS (Atty.

Rodolfo Elman) 1
1ST EXAM COVERAGE CASE COMPILATION
HERNANDEZ v. LANZUELA

Quoted hereunder, for your information, is a resolution of this


Court dated OCT 13, 1999.

which in no case shall be beyond the term of office of the


sanggunian concerned." It is clear from this provision that
petitioner's position in the Sangguniang Bayan, as ex
officio member thereof, could not extend beyond that
Sanggunian's own term from 1992 to 1995. Moreover, the
term of office of the new local officials of Nabua elected in
May 1995 expired in June 1998. The term of office of
members of the Sanggunian, including the ex officio ones,
also expired in June 1998, for the expiry of an ex
officio member's term therein coincides with the expiration of
the terms of office of regular members. (See Sec. 8, Art. 10,
Constitution on the 3-year term of regular elective local
officials.)

G.R. No. 128569(Lucas F. Hernandez vs. Honorable Court


of Appeals (Seventh Division), Edgar Pastoral, Sonny
Prades, Gregorio Ordinario, Teodulo Guazon and Benhur
Lanzuela.)

Thus, the term of the office being disputed in this case an ex officio membership in the Sangguniang Bayan of
Nabua - had long expired. This case, therefore, is already
moot and academic.

Petitioner was elected president of the Liga ng mga


Barangay of Nabua, Camarines Sur, on June 28, 1994. As
such, he automatically became an ex officio member of the
Sangguniang Bayan of Nabua.

WHEREFORE, the present petition is DISMISSED for being


moot and academic.

[G.R. No. 128569.October 13, 1999]


LUCAS F. HERNANDEZ vs. BENHUR LANZUELA
SECOND DIVISION
Gentlemen:

SO ORDERED.

After a new set of municipal officials was elected during the


1995 local elections, the Liga convened and declared all Liga
positions vacant. Petitioner was ousted; elected in his place
was Perfecto Garbiles. The latter's election and assumption
of office as ex officio member of the Sangguniang Bayan
was supported by its presiding officer, private respondent
Edgar Pastoral, and by its members, private respondents
Sonny Prades, Gregorio Ordinario, Teodulo Guazon and
Benhur Lanzuela.

FUNA v. COA
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC

Aggrieved, petitioner filed a petition for quo warranto and


mandamus before the Regional Trial Court, assailing
Garbiles' right to occupy the position of Liga president and
seeking to compel private respondents to recognize him
(petitioner) as the rightful representative of the Liga to the
Sangguniang Bayan. The trial court granted the petition and
ordered Garbiles to cease from exercising the functions of a
member of the Sanggunian, and private respondents from
recognizing him as such. The trial court likewise ordered
private respondents to recognize petitioner as member of the
Sanggunian.
Private respondents sought to have the order of the trial
court annulled in a petition filed before the Court of Appeals,
on the ground that the trial court did not make a categorical
ruling that the election of the new officers of the Liga,
including Garbiles, was null and void. The Court of Appeals
ruled in favor of private respondents. It also denied
petitioner's motion for reconsideration. Hence, the present
petition for certiorari before this Court.
Section 494 of the Local Government Code provides that ex
officio members of any Sanggunian "shall serve as such only
during their term of office as presidents of the liga chapters

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

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1ST EXAM COVERAGE CASE COMPILATION
DENNIS A. B. FUNA,
Petitioner,

- versus -

THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO


A. VILLAR,
Respondent.

Following the retirement of Carague on February 2,


2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of
COA from February 4, 2008 to April 14, 2008. Subsequently,
on April 18, 2008, Villar was nominated and appointed as
Chairman of the COA. Shortly thereafter, on June 11, 2008,
the Commission on Appointments confirmed his
appointment. He was to serve as Chairman of COA, as
expressly indicated in the appointment papers, until the
expiration of the original term of his office as COA
Commissioner or on February 2, 2011. Challenged in this
recourse, Villar, in an obvious bid to lend color of title to his
hold on the chairmanship, insists that his appointment as
COA Chairman accorded him a fresh term of seven (7) years
which is yet to lapse. He would argue, in fine, that his term of
office, as such chairman, is up to February 2, 2015, or 7
years reckoned from February 2, 2008 when he was
appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San
Buenaventura) was appointed as COA Commissioner to
serve the unexpired term of Villar as Commissioner or up to
February 2, 2011.

x-----------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under
Rule 65, Dennis A. B. Funa challenges the constitutionality of
the appointment of Reynaldo A. Villar as Chairman of the
Commission on Audit and accordingly prays that a judgment
issue declaring the unconstitutionality of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria MacapagalArroyo (President Macapagal-Arroyo) appointed Guillermo
N. Carague (Carague) as Chairman of the Commission on
Audit (COA) for a term of seven (7) years, pursuant to the
1987 Constitution.[1] Caragues term of office started on
February 2, 2001 to end on February 2, 2008.

Before the Court could resolve this petition, Villar,


via a letter dated February 22, 2011 addressed to President
Benigno S. Aquino III, signified his intention to step down
from office upon the appointment of his replacement. True to
his word, Villar vacated his position when President Benigno
Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman
Tan) COA Chairman. This development has rendered this
petition and the main issue tendered therein moot and
academic.
A case is considered moot and academic when its
purpose has become stale,[2] or when it ceases to present a
justiciable controversy owing to the onset of supervening
events,[3] so that a resolution of the case or a declaration on
the issue would be of no practical value or use. [4] In such
instance, there is no actual substantial relief which a
petitioner would be entitled to, and which will anyway be
negated by the dismissal of the basic petition. [5] As a general
rule, it is not within Our charge and function to act upon and
decide a moot case. However, in David v. MacapagalArroyo,[6] We acknowledged and accepted certain exceptions
to the issue of mootness, thus:

Meanwhile, on February 7, 2004, President


Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as
the third member of the COA for a term of seven (7) years
starting February 2, 2004 until February 2, 2011.

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

The moot and academic


principle is not a magical formula that can
automatically dissuade the courts in
resolving a case. Courts will decide cases,
otherwise moot and academic, if: first,
there is a grave violation of the
Constitution, second, the exceptional
character of the situation and the
paramount public interest is involved, third,
when constitutional issue raised requires
formulation of controlling principles to
guide the bench, the bar, and the public,

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and fourth, the case is capable
repetition yet evading review.

of

Although deemed moot due to the intervening


appointment of Chairman Tan and the resignation of Villar,
We consider the instant case as falling within the
requirements for review of a moot and academic case, since
it asserts at least four exceptions to the mootness rule
discussed in David, namely: there is a grave violation of the
Constitution; the case involves a situation of exceptional
character and is of paramount public interest; the
constitutional issue raised requires the formulation of
controlling principles to guide the bench, the bar and the
public; and the case is capable of repetition yet evading
review.[7] The situation presently obtaining is definitely of
such exceptional nature as to necessarily call for the
promulgation of principles that will henceforth guide the
bench, the bar and the public should like circumstance
arise. Confusion in similar future situations would be
smoothed out if the contentious issues advanced in the
instant case are resolved straightaway and settled definitely.
There are times when although the dispute has disappeared,
as in this case, it nevertheless cries out to be addressed. To
borrow from Javier v. Pacificador,[8] Justice demands that we
act then, not only for the vindication of the outraged right,
though gone, but also for the guidance of and as a restraint
in the future.
Both procedural and substantive issues are raised
in this proceeding. The procedural aspect comes down to the
question of whether or not the following requisites for the
exercise of judicial review of an executive act obtain in this
petition, viz: (1) there must be an actual case or justiciable
controversy before the court; (2) the question before it must
be ripe for adjudication; (3) the person challenging the act
must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the
very litis mota of the case.[9]

x x x a personal and substantial


interest in the case such that the party has
sustained or will sustain a direct injury as a
result of the governmental act that is being
challenged. The term interest means a
material interest, an interest in issue
affected by the decree, as distinguished
from mere interest in the question
involved,
or
a
mere
incidental
interest. The gist of the question of
standing is whether a party alleges such
personal stake in the outcome of the
controversy as to assure the concrete
adverseness
which
sharpens
the
presentation of issues upon which the
court depends for illumination of difficult
constitutional questions.[11]
To have legal standing, therefore, a suitor must show
that he has sustained or will sustain a direct injury as a
result of a government action, or have a material interest in
the issue affected by the challenged official act. [12] However,
the Court has time and again acted liberally on the locus
standi requirements and has accorded certain individuals,
not otherwise directly injured, or with material interest
affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake.[13] The
rule on locus standi is after all a mere procedural technicality
in relation to which the Court, in a catena of cases involving
a subject of transcendental import, has waived, or relaxed,
thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by
the operation of a law or any other government act.
[14]
In David, the Court laid out the bare minimum norm
before the so-called non-traditional suitors may be
extended standing to sue, thusly:
1.) For taxpayers, there must be a claim
of illegal disbursement of public funds or
that the tax measure is unconstitutional;
2.) For voters, there must be a showing of
obvious interest in the validity of the
election law in question;
3.) For concerned citizens, there must be
a showing that the issues raised are of
transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim
that the official action complained of
infringes their prerogatives as legislators.

To Villar, all the requisites have not been met, it


being alleged in particular that petitioner, suing as a taxpayer
and citizen, lacks the necessary standing to challenge his
appointment.[10] On the other hand, the Office of the Solicitor
General (OSG), while recognizing the validity of Villars
appointment for the period ending February 11, 2011, has
expressed the view that petitioner should have had filed a
petition for declaratory relief or quo warranto under Rule 63
or Rule 66, respectively, of the Rules of Court instead
ofcertiorari under Rule 65.
Villars posture on the absence of some of the
mandatory requisites for the exercise by the Court of its
power of judicial review must fail. As a general rule, a
petitioner must have the necessary personality or standing
(locus standi) before a court will recognize the issues
presented. In Integrated Bar of the Philippines v. Zamora,
We definedlocus standi as:

This case before Us is of transcendental


importance, since it obviously has far-reaching implications,
and there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases. We,
thus, assume a liberal stance and allow petitioner to institute
the instant petition.

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

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Anent the aforestated posture of the OSG, there is
no serious disagreement as to the propriety of the availment
of certiorari as a medium to inquire on whether the assailed
appointment of respondent Villar as COA Chairman infringed
the constitution or was infected with grave abuse of
discretion. For under the expanded concept of judicial
review under the 1987 Constitution, the corrective hand of
certiorari may be invoked not only to settle actual
controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the government.[15] Grave abuse of
discretion denotes:
such capricious and whimsical exercise of
judgment as is equivalent to lack of
jurisdiction, or, in other words, where the
power is exercised in an arbitrary or
despotic manner by reason of passion or
personal hostility, and it must be so patent
and gross as to amount to an evasion of
positive duty or to a virtual refusal to
perform the duty enjoined or to act in
contemplation of law.[16]

We find the remedy of certiorari applicable to the


instant case in view of the allegation that then President
Macapagal-Arroyo exercised her appointing power in a
manner constituting grave abuse of discretion.
This brings Us to the pivotal substantive issue of
whether or not Villars appointment as COA Chairman, while
sitting in that body and after having served for four (4) years
of his seven (7) year term as COA commissioner, is valid in
light of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of
the Constitution, which reads:

At once clear from a perusal of the aforequoted


provision are the defined restricting features in the matter of
the composition of COA and the appointment of its members
(commissioners and chairman) designed to safeguard the
independence and impartiality of the commission as a body
and that of its individual members.[18] These are, first, the
rotational plan or the staggering term in the commission
membership, such that the appointment of commission
members subsequent to the original set appointed after the
effectivity of the 1987 Constitution shall occur every two
years; second, the maximum but a fixed term-limit of seven
(7) years for all commission members whose appointments
came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill
up vacancies resulting from certain causes; third, the
prohibition against reappointment of commission members
who served the full term of seven years or of members first
appointed under the Constitution who served their respective
terms of office; fourth, the limitation of the term of a member
to the unexpired portion of the term of the predecessor;
and fifth, the proscription against temporary appointment or
designation.
To elucidate on the mechanics of and the adverted
limitations on the matter of COA-member appointments
with fixed but staggered terms of office, the Court lays down
the following postulates deducible from pertinent
constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first
set of commissioners, or the seven, five and three-year
termers referred to in Sec. 1(2), Art. IX(D) of the Constitution,
had already expired. Hence, their respective terms of office
find relevancy for the most part only in understanding the
operation of the rotational plan. In Gaminde v. Commission
on Audit,[19] the Court described how the smooth functioning
of the rotational system contemplated in said and like
provisions covering the two other independent commissions
is achieved thru the staggering of terms:

(2) The Chairman and Commissioners


[on Audit] 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. (Emphasis added.)[17]

And if valid, for how long can he serve?

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

x x x [T]he terms of the first


Chairmen and Commissioners of the
Constitutional Commissions under the
1987 Constitution must start on a common
date [February 02, 1987, when the 1987
Constitution was ratified] irrespective of
the variations in the dates of appointments
and qualifications of the appointees in
order that the expiration of the first terms
of seven, five and three years should lead
to the regular recurrence of the two-year
interval between the expiration of the
terms.
x x x In case of a belated
appointment, the interval between the
start of the terms and the actual
appointment shall be counted against

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the
appointee.[20] (Italization
original; emphasis added.)

in

the

Early on, in Republic v. Imperial,[21] the Court wrote


of two conditions, both indispensable to [the] workability
of the rotational plan. These conditions may be described as
follows: (a) that the terms of the first batch of commissioners
should start on a common date; and (b) that any
vacancy due to death, resignation or disability before
the expiration of the term should be filled only for the
unexpired
balance
of
the
term. Otherwise, Imperial continued, the regularity of the
intervals between appointments would be destroyed. There
appears to be near unanimity as to the purpose/s of the
rotational system, as originally conceived, i.e., to place in the
commission a new appointee at a fixed interval (every two
years presently), thus preventing a four-year administration
appointing more than one permanent and regular
commissioner,[22] or to borrow from Commissioner Monsod of
the 1986 CONCOM, to prevent one person (the President of
the Philippines) from dominating the commissions. [23] It has
been declared too that the rotational plan ensures continuity
in, and, as indicated earlier, secure the independence of, the
commissions as a body.[24]

2. An appointment to any vacancy in COA,


which arose from an expiration of a term, after the first
chairman and commissioners appointed under the 1987
Constitution have bowed out, shall, by express constitutional
fiat, be for a term of seven (7) years, save when the
appointment is to fill up a vacancy for the corresponding
unserved term of an outgoing member. In that case, the
appointment shall only be for the unexpired portion of the
departing commissioners term of office. There can only be
an unexpired portion when, as a direct result of his demise,
disability, resignation or impeachment, as the case may be, a
sitting member is unable to complete his term of office.[25] To
repeat, should the vacancy arise out of the expiration of the
term of the incumbent, then there is technically no unexpired
portion to speak of. The vacancy is for a new and complete
seven-year term and, ergo, the appointment thereto shall in
all instances be for a maximum seven (7) years.
3.
Sec. 1(2), Art. IX(D) of the 1987 Constitution
prohibits the reappointment of a member of COA after his
appointment for seven (7) years. Writing for the Court
inNacionalista Party v. De Vera,[26] a case involving the
promotion of then COMELEC Commissioner De Vera to the
position of chairman, then Chief Justice Manuel Moran called
attention to the fact that the prohibition against
reappointment comes as a continuation of the requirement
that the commissionersreferring to members of the
COMELEC under the 1935 Constitutionshall hold office for
a term of nine (9) years. This sentence formulation imports,

notes Chief Justice Moran, that reappointment is not an


absolute prohibition.
4.
The adverted system of regular rotation or
the staggering of appointments and terms in the membership
for all three constitutional commissions, namely the COA,
Commission on Elections (COMELEC) and Civil Service
Commission (CSC) found in the 1987 Constitution was
patterned after the amended 1935 Constitution for the
appointment of the members of COMELEC [27] with this
difference: the 1935 version entailed a regular interval of
vacancy every three (3) years, instead of the present two (2)
years and there was no express provision on appointment to
any vacancy being limited to the unexpired portion of the his
predecessors term. The model 1935 provision reads:
Section 1. There shall be an
independent Commission on Elections
composed of a Chairman and two other
members to be appointed by the President
with the consent of the Commission on
Appointments, who shall hold office for a
term of nine years and may not be
reappointed. Of the Members of the
Commission first appointed, one shall hold
office for nine years, another for six years
and the third for three years. x x x

Petitioner now asseverates the view that Sec. 1(2),


Art. IX(D) of the 1987 Constitution proscribes reappointment
of any kind within the commission, the point being that a
second appointment, be it for the same position
(commissioner to another position of commissioner) or
upgraded position (commissioner to chairperson) is a
prohibited reappointment and is a nullity ab initio. Attention
is drawn in this regard to the Courts disposition in Matibag v.
Benipayo.[28]
Villars promotional appointment, so it is argued, is
void from the start, constituting as it did a reappointment
enjoined by the Constitution, since it actually needed another
appointment to a different office and requiring another
confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is
the correct meaning to be given to Sec. 1(2), Article IX(D) of
the Constitution on the ban against reappointment in relation
to the appointment issued to respondent Villar to the position
of COA Chairman.
Without question, the parties have presented two
(2) contrasting and conflicting positions. Petitioner contends
that Villars appointment is proscribed by the constitutional
ban on reappointment under the aforecited constitutional
provision. On the other hand, respondent Villar initially
asserted that his appointment as COA Chairman is valid up
to February 2, 2015 pursuant to the same provision.

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The Court finds petitioners position bereft of
merit. The flaw lies in regarding the word reappointment
as, in context, embracing any and all species of
appointment.
The rule is that if a statute or constitutional
provision is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted
interpretation.[29] This is known as the plain meaning rule
enunciated by the maxim verba legis non est recedendum,
or from the words of a statute there should be no departure.
[30]

The primary source whence to ascertain


constitutional intent or purpose is the language of the
provision itself.[31] If possible, the words in the Constitution
must be given their ordinary meaning, save where technical
terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:

three
years,
without
reappointment. Appointment
to
any
vacancy shall be only for the unexpired
portion of the term of the predecessor.
x x x (Emphasis added.)
The first sentence is unequivocal enough. The COA
Chairman shall be appointed by the President for a term of
seven years, and if he has served the full term, then he can
no longer be reappointed or extended another
appointment. In the same vein, a Commissioner who was
appointed for a term of seven years who likewise served the
full term is barred from being reappointed. In short, once the
Chairman or Commissioner shall have served the full term of
seven years, then he can no longer be reappointed to either
the position of Chairman or Commissioner. The obvious
intent of the framers is to prevent the president from
dominating the Commission by allowing him to appoint an
additional or two more commissioners.

We look to the language of the


document itself in our search for its
meaning. We do not of course stop there,
but that is where we begin. It is to be
assumed that the words in which
constitutional provisions are couched
express the objective sought to be
attained. They are to be given their
ordinary meaning except where technical
terms are employed in which case the
significance thus attached to them
prevails. As the Constitution is not
primarily a lawyers document, it being
essential for the rule of law to obtain that it
should ever be present in the peoples
consciousness, its language as much as
possible should be understood in the
sense they have in common use. What
it says according to the text of the
provision to be construed compels
acceptance and negates the power of the
courts to alter it, based on the postulate
that the framers and the people mean
what they say. Thus there are cases
where the need for construction is reduced
to a minimum.[32] (Emphasis supplied.)

The same purpose obtains in the second sentence of


Sec.
1(2). The
Constitutional
Convention
barred
reappointment to be extended to commissioner-members
first appointed under the 1987 Constitution to prevent the
President from controlling the commission. Thus, the first
Chairman appointed under the 1987 Constitution who served
the full term of seven years can no longer be extended a
reappointment. Neither can the Commissioners first
appointed for the terms of five years and three years be
eligible for reappointment. This is the plain meaning
attached to the second sentence of Sec. 1(2), Article IX(D).

Let us dissect and examine closely the provision in


question:

In conclusion, there is nothing in Sec. 1(2), Article


IX(D) that explicitly precludes a promotional appointment
from Commissioner to Chairman, provided it is made under
the aforestated circumstances or conditions.

(2)
The Chairman
and
Commissioners
[on
Audit] 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

On the other hand, the provision, on its face, does not


prohibit a promotional appointment from commissioner to
chairman as long as the commissioner has not served the
full term of seven years, further qualified by the third
sentence of Sec. 1(2), Article IX (D) that the appointment to
any vacancy shall be only for the unexpired portion of the
term of the predecessor. In addition, such promotional
appointment to the position of Chairman must conform to the
rotational plan or the staggering of terms in the commission
membership such that the aggregate of the service of the
Commissioner in said position and the term to which he will
be appointed to the position of Chairman must not exceed
seven years so as not to disrupt the rotational system in the
commission prescribed by Sec. 1(2), Art. IX(D).

It may be argued that there is doubt or ambiguity on


whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional
appointment
from
Commissioner
to
Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M. Tuason &
Co., Inc.[33] teaches that in case of doubt as to the import and
react of a constitutional provision, resort should be made to

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extraneous aids of construction, such as debates and
proceedings of the Constitutional Convention, to shed light
on and ascertain the intent of the framers or the purpose of
the provision being construed.
The understanding of the Convention as to what was
meant by the terms of the constitutional provision which was
the subject of the deliberation goes a long way toward
explaining the understanding of the people when they ratified
it. The Court applied this principle in Civil Liberties Union v.
Executive Secretary:

defined parameters. The ensuing exchanges during the


deliberations of the 1986 Constitutional Commission
(CONCOM) on a draft proposal of what would eventually be
Sec. 1(2), Art. IX(D) of the present Constitution amply
support the thesis that a promotional appointment is allowed
provided no one may be in the COA for an aggregate
threshold period of 7 years:

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.
[34]
(Emphasis added.)
And again in Nitafan v. Commissioner on Internal
Revenue:
x x x The ascertainment of that
intent is but in keeping with the
fundamental principle of constitutional
construction that the intent of the
framers of the organic law and of the
people adopting it should be given
effect. The primary task in constitutional
construction is to ascertain and thereafter
assure the realization of the purpose of the
framers and of the people in the adoption
of the Constitution. It may also be safely
assumed that the people in ratifying the
Constitution were guided mainly by the
explanation offered by the framers.
[35]
(Emphasis added.)
Much weight and due respect must be accorded to
the intent of the framers of the Constitution in interpreting its
provisions.
Far from prohibiting reappointment of any kind,
including a situation where a commissioner is upgraded to
the position of chairman, the 1987 Constitution in fact
unequivocally allows promotional appointment, but subject to

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

MS. AQUINO: In the same


paragraph,
I
would
propose
an
amendment x x x. Between x x x the
sentence which begins with In no case,
insert THE APPOINTEE SHALL IN NO
CASE SERVE AN AGGREGATE PERIOD
OF MORE THAN SEVEN YEARS. I was
thinking that this may approximate the
situation wherein a commissioner is first
appointed as chairman. I am willing to
withdraw that amendment if there is a
representation on the part of the
Committee
that
there
is
an
implicit intention to prohibit a term that
in the aggregate will exceed more than
seven years. If that is the intention, I am
willing to withdraw my amendment.
MR.
MONSOD:
If
the
[Gentlewoman] will read the whole Article,
she will notice that there is no
reappointment of any kind and, therefore,
as a whole there is no way somebody
can serve for more than seven years.
The purpose of the last sentence is to
make sure that this does not happen by
including in the appointment both
temporary and acting capacities.
MS.
AQUINO.
Yes.
Reappointment is fine; that is accounted
for. But I was thinking of a situation
wherein a commissioner is upgraded to
a position of chairman. But if this
provision is intended to cover that kind of
situation, then I am willing to withdraw my
amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on
line 29 precisely to cover that situation. It
states: Appointment to any vacancy shall
be only for the unexpired portion of the
predecessor. In other words, if there is
upgrading
of
position
from
commissioner
to
chairman,
the
appointee can serve only the unexpired
portion of the term of the predecessor.

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1ST EXAM COVERAGE CASE COMPILATION
MS. AQUINO: But we have to be
very specific x x x because it might
shorten the term because he serves
only the unexpired portion of the term
of the predecessor.
MR. FOZ: He takes it at his own
risk. He knows that he will only have to
serve the unexpired portion of the term
of the predecessor. (Emphasis added.)
[36]

The phrase upgrading of position found in the


underscored portion unmistakably shows that Sec. 1(2), Art.
IX(D) of the 1987 Constitution, for all its caveat against
reappointment, does not per se preclude, in any and all
cases, the promotional appointment or upgrade of a
commissioner to chairman, subject to this proviso: the
appointees tenure in office does not exceed 7 years in all.
Indeed, such appointment does not contextually come within
the restricting phrase without reappointment twice written
in that section. Delegate Foz even cautioned, as a matter of
fact, that a sitting commissioner accepting a promotional
appointment to fill up an unexpired portion pertaining to the
higher office does so at the risk of shortening his original
term. To illustrate the Fozs concern: assume that Carague
left COA for reasons other than the expiration of his
threshold 7-year term and Villar accepted an appointment to
fill up the vacancy. In this situation, the latter can only stay at
the COA and served the unexpired portion of Caragues
unexpired term as departing COA Chairman, even if, in the
process, his (Villars) own 7-year term as COA commissioner
has not yet come to an end. In this illustration, the inviolable
regularity of the intervals between appointments in the COA
is preserved.
Moreover, jurisprudence tells us that the word
reappointment means a second appointment to one and
the same office.[37] As Justice Arsenio Dizon (Justice Dizon)
aptly observed in his dissent in Visarra v. Miraflor,[38] the
constitutional prohibition against the reappointment of a
commissioner refers to his second appointment to the same
office after holding it for nine years.[39] As Justice Dizon
observed, [T]he occupant of an office obviously needs no
such second appointment unless, for some valid cause, such
as the expiration of his term or resignation, he had ceased to
be the legal occupant thereof. [40] The inevitable implication
of Justice Dizons cogent observation is that a promotion
from commissioner to chairman, albeit entailing a second
appointment, involves a different office and, hence, not, in
the strict legal viewpoint, a reappointment. Stated a bit
differently, reappointment refers to a movement to one and
the same office. Necessarily, a movement to a different
position within the commission (from Commissioner to
Chairman) would constitute an appointment, or a second
appointment, to be precise, but not reappointment.
A similar
same Visarra case

opinion
by the

Bautista, although he expressly alluded to a promotional


appointment as not being a prohibited appointment under
Art. X of the 1935 Constitution.
Petitioners invocation of Matibag as additional
argument to contest the constitutionality of Villars elevation
to the COA chairmanship is inapposite. In Matibag, then
President Macapagal-Arroyo appointed, ad interim, Alfredo
Benipayo as COMELEC Chairman and Resurreccion Borra
and Florentino Tuason as Commissioners, each for a term of
office of seven (7) years. All three immediately took their oath
of, and assumed, office. These appointments were twice
renewed because the Commission on Appointments failed to
act on the first two ad interim appointments. Via a petition for
prohibition, some disgruntled COMELEC officials assail as
infirm the appointments of Benipayo, et al.
Matibag lists (4) four situations where the
prohibition on reappointment would arise, or to be specific,
where the proviso [t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years without
reappointment shall apply. Justice Antonio T. Carpio
declares in his dissent that Villars appointment falls under a
combination of two of the four situations.
Conceding for the nonce the correctness of the
premises depicted in the situations referred to
in Matibag, that case is of doubtful applicability to the instant
petition. Not only is it cast against a different milieu, but
the lis mota of the case, as expressly declared in the main
opinion, is the very constitutional issue raised by
petitioner.[41] And what is/are this/these issue/s? Only two
defined issues in Matibag are relevant, viz: (1) the nature of
an ad interim appointment and subsumed thereto the effect
of a by-passed ad interim appointment; and (2) the
constitutionality of renewals of ad interim appointments. The
opinion defined these issues in the following wise: Petitioner
[Matibag] filed the instant petition questioning the
appointment and the right to remain in office of Benipayo,
Borra and Tuason as Chairman and Commissioners of the
COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, et al. violate the
constitutional provisions on the independence of COMELEC,
as well as on the prohibitions on temporary appointments
and reappointments of its Chairman and members. As may
distinctly be noted, an upgrade or promotion was not in issue
in Matibag.
We shall briefly address the four adverted situations
outlined in Matibag, in which, as there urged, the uniform
proviso on no reappointmentafter a member of any of the
three constitutional commissions is appointed for a term of
seven (7) yearsshall apply. Matibag made the following
formulation:

was
expressed in the
concurring Justice Angelo

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

The first situation is where an ad


interim appointee after confirmation by the
Commission on Appointments serves his
full 7-year term. Such person cannot be
reappointed whether as a member or as

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chairman because he will then be actually
serving more than seven (7) years.
The second situation is where the
appointee, after confirmation, serves part
of his term and then resigns before his
seven-year term of office ends. Such
person cannot be reappointed whether as
a member or as chair to a vacancy arising
from retirement because a reappointment
will result in the appointee serving more
than seven years.
The third situation is where the
appointee is confirmed to serve the
unexpired portion of someone who died or
resigned, and the appointee completes the
unexpired term. Such person cannot be
reappointed whether as a member or as
chair to a vacancy arising from retirement
because a reappointment will result in the
appointee also serving more than seven
(7) years.
The fourth situation is where
the appointee has previously served a
term of less than seven (7) years, and a
vacancy
arises
from
death
or
resignation. Even if it will not result in
his serving more than seven years, a
reappointment of such person to serve
an unexpired term is also prohibited
because his situation will be similar to
those appointed under the second
sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of
appointees (the 5 and 3 year termers)
whose term of office are less than 7
years but are barred from being
reappointed
under
any
situation].[42] (Words in brackets and
emphasis supplied.)
The situations just described constitute an obiter
dictum, hence without the force of adjudication, for the
corresponding formulation of the four situations was not in
any way necessary to resolve any of the determinative
issues specifically defined in Matibag. An opinion entirely
unnecessary for the decision of the case or one expressed
upon a point not necessarily involved in the determination of
the case is an obiter.[43]
There can be no serious objection to the scenarios
depicted in the first, second and third situations, both hewing
with the proposition that no one can stay in any of the three
independent commissions for an aggregate period of more
than seven (7) years. The fourth situation, however, does
not commend itself for concurrence inasmuch as it is
basically predicated on the postulate that reappointment, as

earlier herein defined, of any kind is prohibited under any


and all circumstances. To reiterate, the word reappointment
means a second appointment to one and the same office;
and Sec. 1(2), Art. IX(D) of the 1987 Constitution and
similar provisions do not peremptorily prohibit the
promotional appointment of a commissioner to chairman,
provided the new appointees tenure in both capacities does
not exceed seven (7) years in all. The statements
in Matibag enunciating the ban on reappointment in the
aforecited fourth situation, perforce, must be abandoned, for,
indeed, a promotional appointment from the position of
Commissioner to that of Chairman is constitutionally
permissible and not barred by Sec. 1(2), Art. IX (D) of the
Constitution.
One of the aims behind the prohibition on
reappointment, petitioner urges, is to ensure and preserve
the independence of COA and its members,[44] citing what the
dissenting Justice J.B.L Reyes wrote in Visarra, that once
appointed and confirmed, the commissioners should be free
to act as their conscience demands, without fear of
retaliation or hope or reward. Pursued to its logical
conclusion, petitioners thesis is that a COA member may no
longer act with independence if he or she can be rewarded
with a promotion or appointment, for then he or she will do
the bidding of the appointing authority in the hope of being
promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes
counsel is that independence is really a matter of choice.
Without taking anything away from the gem imparted by the
eminent jurist, what Chief Justice Moran said on the subject
of independence is just as logically sound and perhaps even
more compelling, as follows:
A Commissioner, hopeful of
reappointment may strive to do good.
Whereas, without that hope or other hope
of material reward, his enthusiasm may
decline as the end of his term approaches
and he may even lean to abuses if there is
no higher restrain in his moral character.
Moral character is no doubt the most
effective safeguard of independence. With
moral integrity, a commissioner will be
independent with or without the possibility
of reappointment.[45]
The Court is likewise unable to sustain Villars
proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year termfrom
February 2008 to February 2015given his four (4)-year
tenure as COA commissioner devalues all the past
pronouncements made by this Court, starting in De Vera,
then Imperial,Visarra, and finally Matibag. While there had
been divergence of opinion as to the import of the word
reappointment, there has been unanimity on the dictum
that in no case can one be a COA member, either as
chairman or commissioner, or a mix of both positions, for an

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aggregate term of more than 7 years. A contrary view would
allow a circumvention of the aggregate 7-year service
limitation and would be constitutionally offensive as it would
wreak havoc to the spirit of the rotational system of
succession. Imperial, passing upon the rotational system as
it applied to the then organizational set-up of the COMELEC,
stated:
The provision that of the first
three commissioners appointed one shall
hold office for 9 years, another for 6 years
and the third for 3 years, when taken
together with the prescribed term of office
for 9 years without reappointment, evinces
a deliberate plan to have a regular rotation
or cycle in the membership of the
commission, by having subsequent
members appointable only once every
three years.[46]

To be sure, Villars appointment as COA Chairman


partakes of a promotional appointment which, under
appropriate setting, would be outside the purview of the
constitutional reappointment ban in Sec 1(2), Art. IX(D) of the
Constitution. Nonetheless, such appointment, even for the
term appearing in the underlying appointment paper, ought
still to be struck down as unconstitutional for the reason as
shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional
provision decrees that the appointment of a COA member
shall be for a fixed 7-year term if the vacancy results from
the expiration of the term of the predecessor. We reproduce
in its pertinent part the provision referred to:
(2)
The Chairman
and
Commissioners
[on
Audit] shall
be appointed x x x for a term of seven
years without
reappointment.
x
x
x Appointment to any vacancy shall
be only for the unexpired portion of the
term of the predecessor. x x x
Accordingly, the promotional appointment as COA
Chairman of Villar for a stated fixed term of less than seven
(7) years is void for violating a clear, but mandatory
constitutional prescription. There can be no denying that the
vacancy in the position of COA chairman when Carague
stepped down in February 2, 2008 resulted from the
expiration of his 7-year term. Hence, the appointment to the
vacancy thus created ought to have been one for seven (7)
years in line with the verbal legis approach[47] of interpreting
the Constitution. It is to be understood, however,
following Gaminde, that in case of a belated appointment,
the interval between the start of the term and the actual
appointment shall be counted against the 7-year term of the

appointee. Posing, however, as an insurmountable barrier to


a full 7-year appointment for Villar is the rule against one
serving the commission for an aggregate term of more than
seven (7) years.
Where the Constitution or, for that matter, a statute,
has fixed the term of office of a public official, the appointing
authority is without authority to specify in the appointment a
term shorter or longer than what the law provides. If the
vacancy calls for a full seven-year appointment, the
President is without discretion to extend a promotional
appointment for more or for less than seven (7) years. There
is no in between. He or she cannot split terms. It is not within
the power of the appointing authority to override the positive
provision of the Constitution which dictates that the term of
office of members of constitutional bodies shall be seven (7)
years.[48] A contrary reasoning would make the term of office
to depend upon the pleasure or caprice of the [appointing
authority] and not upon the will [of the framers of the
Constitution] of the legislature as expressed in plain and
undoubted language in the law.[49]
In net effect, then President Macapagal-Arroyo
could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year
appointment, as the Constitution decrees, was not legally
feasible in light of the 7-year aggregate rule. Villar had
already served 4 years of his 7-year term as COA
Commissioner. A shorter term, however, to comply with said
rule would also be invalid as the corresponding appointment
would effectively breach the clear purpose of the Constitution
of giving to every appointee so appointed subsequent to the
first set of commissioners, a fixed term of office of 7
years. To recapitulate, a COA commissioner like respondent
Villar who serves for a period less than seven (7) years
cannot be appointed as chairman when such position
became vacant as a result of the expiration of the 7-year
term of the predecessor (Carague). Such appointment to a
full term is not valid and constitutional, as the appointee will
be allowed to serve more than seven (7) years under the
constitutional ban.
On the other hand, a commissioner who resigned
before serving his 7- year term can be extended an
appointment to the position of chairman for the unexpired
period of the term of the latter, provided the aggregate of the
period he served as commissioner and the period he will
serve as chairman will not exceed seven (7) years. This
situation will only obtain when the chairman leaves the office
by
reason
of
death,
disability,
resignation
or
impeachment. Let us consider, in the concrete, the situation
of then Chairman Carague and his successor,
Villar. Carague was appointed COA Chairman effective
February 2, 2001 for a term of seven (7) years, or up to
February 2, 2008. Villar was appointed as Commissioner on
February 2, 2004 with a 7-year term to end on February 2,
2011. If Carague for some reason vacated the chairmanship
in 2007, then Villar can resign as commissioner in the same
year and later be appointed as chairman to serve only up to

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1ST EXAM COVERAGE CASE COMPILATION
February 2, 2008, the end of the unexpired portion of
Caragues term. In this hypothetical scenario, Villars
appointment to the position of chairman is valid and
constitutional as the aggregate periods of his two (2)
appointments will only be five (5) years which neither distorts
the rotational scheme nor violates the rule that the sum total
of said appointments shall not exceed seven (7) years. Villar
would, however, forfeit two (2) years of his original seven
(7)-year term as Commissioner, since, by accepting an
upgraded appointment to Caragues position, he agreed to
serve the unexpired portion of the term of the predecessor.
As illustrated earlier, following Mr. Fozs line, if there is an
upgrading of position from commissioner to chairman, the
appointee takes the risk of cutting short his original term,
knowing pretty well before hand that he will serve only the
unexpired portion of the term of his predecessor, the
outgoing COA chairman.
In the extreme hypothetical situation that Villar
vacates the position of chairman for causes other than the
expiration of the original term of Carague, the President can
only appoint the successor of Villar for the unexpired portion
of the Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term
of Carague, the President can appoint a new chairman for a
term of seven (7) full years.
In his separate dissent, my esteemed colleague,
Mr. Justice Mendoza, takes strong exception to the view that
the promotional appointment of a sitting commissioner is
plausible only when he is appointed to the position of
chairman for the unexpired portion of the term of said official
who leaves the office by reason of any the following reasons:
death, disability, resignation or impeachment, not when the
vacancy arises out as a result of the expiration of the 7-year
term of the past chairman. There is nothing in the
Constitution, so Justice Mendoza counters, that restricts the
promotion
of
an incumbent commissioner
to
the
chairmanship only in instances where the tenure of his
predecessor was cut short by any of the four events referred
to. As earlier explained, the majority view springs from the
interplay of the following premises: The explicit command of
the Constitution is that the Chairman and the
Commissioners shall be appointed by the President x x x for
a term of seven years [and] appointment to any vacancy
shall be only for the unexpired portion of the term of the
predecessor. To repeat, the President has two and only two
options on term appointments. Either he extends an
appointment for a full 7-year term when the vacancy results
from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor
when the vacancy occurs by reason of death, physical
disability, resignation or impeachment. If the vacancy calls
for a full seven-year appointment, the Chief Executive is
barred from extending a promotional appointment for less
than seven years. Else, the President can trifle with terms of
office fixed by the Constitution.

Justice Mendoza likewise invites attention to an


instance in history when a commissioner had been promoted
chairman after the expiration of the term of his
predecessor, referring specifically to the appointment of then
COMELEC Commissioner Gaudencio Garcia to succeed
Jose P. Carag after the expiration of the latters term in 1959
as COMELEC chairman. Such appointment to the position
of chairman is not constitutionally permissible under the
1987 Constitution because of the policy and intent of its
framers that a COA member who has served his full term of
seven (7) years or even for a shorter period can no longer be
extended another appointment to the position of chairman for
a full term of seven (7) years. As revealed in the
deliberations of the Constitutional Commission that crafted
the 1987 Constitution, a member of COA who also served as
a commissioner for less than seven (7) years in said position
cannot be appointed to the position of chairman for a full
term of seven (7) years since the aggregate will exceed
seven (7) years. Thus, the adverted Garcia appointment in
1959 made under the 1935 Constitution cannot be used as a
precedent to an appointment of such nature under the 1987
Constitution. The dissent further notes that the upgrading
remained uncontested. In this regard, suffice it to state that
the promotion in question was either legal or it was not. If it
were not, no amount of repetitive practices would clear it of
invalidating taint.
Lastly, Villars appointment as chairman ending
February 2, 2011 which Justice Mendoza considers as valid
is likewise unconstitutional, as it will destroy the rationale
and policy behind the rotational system or the staggering of
appointments and terms in COA as prescribed in the
Constitution. It disturbs in a way the staggered rotational
system of appointment under Sec. 1(2), Art. IX(D) of the
1987 Constitution. Consider: If Villars term as COA
chairman up to February 2, 2011 is viewed as valid and
constitutional as espoused by my esteemed colleague, then
two vacancies have simultaneously occurred and two (2)
COA members going out of office at once, opening positions
for two (2) appointables on that date as Commissioner San
Buenaventuras term also expired on that day. This is
precisely one of the mischiefs the staggering of terms and
the regular intervals appointments seek to address. Note that
San Buenaventura was specifically appointed to succeed
Villar as commissioner, meaning she merely occupied the
position vacated by her predecessor whose term as such
commissioner expired on February 2, 2011. The result is
what the framers of the Constitution doubtless sought to
avoid, a sitting President with a 6-year term of office, like
President Benigno C. Aquino III, appointing all or at least two
(2) members of the three-man Commission during his
term. He appointed Ma. Gracia Pulido-Tan as Chairman for
the term ending February 2, 2015 upon the relinquishment of
the post by respondent Villar, and Heidi Mendoza was
appointed Commissioner for a 7-year term ending February
2, 2018 to replace San Buenaventura. If Justice Mendozas
version is adopted, then situations like the one which obtains
in the Commission will definitely be replicated in gross
breach of the Constitution and in clear contravention of the

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intent of its framers. Presidents in the future can easily
control the Commission depriving it of its independence and
impartiality.

Commission on Audit to replace Guillermo N. Carague,


whose term of office as such chairman has expired, is
hereby declared UNCONSTITUTIONAL for violation of Sec.
1(2), Art. IX(D) of the Constitution.

To sum up, the Court restates its ruling on Sec.


1(2), Art. IX(D) of the Constitution, viz:

SO ORDERED.
DATU ABAS KIDA v. SENATE

1.
The appointment of members of any of
the three constitutional commissions, after the expiration of
the uneven terms of office of the first set of commissioners,
shall always be for a fixed term of seven (7) years; an
appointment for a lesser period is void and unconstitutional.

CADIENTE v. SANTOS
Republic of the Philippines
SUPREME COURT
Manila

The appointing authority cannot validly shorten the


full term of seven (7) years in case of the expiration of the
term as this will result in the distortion of the rotational
system prescribed by the Constitution.

SECOND DIVISION
2.
Appointments to vacancies resulting
from certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired portion of the
term of the predecessor, but such appointments cannot be
less than the unexpired portion as this will likewise disrupt
the staggering of terms laid down under Sec. 1(2), Art. IX(D).
3.
Members of the Commission, e.g.
COA, COMELEC or CSC, who were appointed for a full term
of seven years and who served the entire period, are barred
from
reappointment
to
any
position
in
the
Commission. Corollarily, the first appointees in the
Commission under the Constitution are also covered by the
prohibition against reappointment.
4.
A commissioner who resigns after
serving in the Commission for less than seven years is
eligible for an appointment to the position of Chairman for
the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on
reappointment, provided that the aggregate period of the
length of service as commissioner and the unexpired period
of the term of the predecessor will not exceed seven (7)
years and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or
removal by impeachment. The Court clarifies that
reappointment found in Sec. 1(2), Art. IX(D) means a
movement to one and the same office (Commissioner to
Commissioner or Chairman to Chairman). On the other
hand, an appointment involving a movement to a different
position or office (Commissioner to Chairman) would
constitute a new appointment and, hence, not, in the strict
legal sense, a reappointment barred under the Constitution.
5.
Any member of the Commission
cannot be appointed or designated in a temporary or acting
capacity.
WHEREFORE the
petition
is PARTLY
GRANTED. The appointment of then Commissioner
Reynaldo A. Villar to the position of Chairman of the

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

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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 noncompetitive 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

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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:

MANUEL M. CASUMPANG, petitioners,


vs.
CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA,
CIRILO GELVEZON, TEODULFO DATO-ON, and NELSON
GEDUSPAN, respondents.
Sixto P. Demaisip for petitioners.
Rex C. Muzones for private respondents.

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.
GRINO v. CIVIL SERVICE COMMISSION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 91602 February 26, 1991

Thelma A. Panganiban-Gaminde, Rogelio C. Limare and


Normita M. Llamas-Villanueva for Civil Service Commission.

GANCAYCO, J.:p
The main issue in this petition is whether or not the position
of a provincial attorney and those of his legal subordinates
are primarily confidential in nature so that the services of
those holding the said items can be terminated upon loss of
confidence.
The facts of this case are simple.
Petitioner Sixto Demaisip was the first appointed Provincial
Attorney of Iloilo. He held this position from April 3, 1973 up
to June 2, 1986 when he offered to resign and his
resignation was accepted by the then Acting Governor. In his
resignation letter, petitioner Demaisip recommended the
elevation of respondent Teotimo Arandela from Senior Legal
Officer to Provincial Attorney. OIC Governor Licurgo Tirador
later on decided to appoint respondent Arandela as the
Provincial Attorney. Respondent Cirilo Gelvezon, on the
other hand, was promoted from Legal Officer II to Senior
Legal Officer. Respondents Teodolfo Dato-on and Nelson
Geduspan were appointed to the position of Legal
Officer II.
On February 2, 1988, petitioner Simplicio Grio assumed
office as the newly elected governor of Iloilo. One month
later, he informed respondent Arandela and all the legal
officers at the Provincial Attorney's Office about his decision
to terminate their services. In his letter, petitioner Grio made
mention of an article pertaining to the Iloilo office of the
Provincial Attorney which appeared in the Panay News and
which "undermined that trust and confidence" that he
reposed on them. Petitioner Demaisip was reappointed by
Governor Grio as the Provincial Attorney, The latter, on the
other hand, arranged the replacements of the other legal
officers. Respondent Cirilo Gelvezon was replaced by
petitioner Santos Aguadera, respondent Nelson Geduspan
was replaced by petitioner Manuel Casumpang and
petitioner Manuel Travia took the place of respondent
Teodolfo Dato-on.

HONORABLE SIMPLICIO C. GRIO, SIXTO P. DEMAISIP,


SANTOS B. AGUADERA, MANUEL B. TRAVIA and

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On March 15, 1988, petitioner Governor Grio formally
terminated the services of the respondents herein on the
ground of loss of trust and confidence. This action taken by
the governor was appealed by respondents to the Merit
Systems Protection Board of the Civil Service Commission.
On March 9, 1989, the Merit Systems Board issued an Order
declaring the respondents' termination illegal and ordering
that they be immediately restored to their positions with back
salaries and other emoluments due them. This was appealed
by petitioner Grio to the Civil Service Commission.
In Resolution No. 89-736 dated October 9, 1989, the Civil
Service Commission affirmed the Order of the Merit Systems
Protection Board, and directed that the respondents be
restored to their former legal positions and be paid back
salaries and other benefits.
Petitioners filed a Motion for Reconsideration of the abovementioned Decision of the Civil Service Commission. The
motion was denied on December 7, 1989 in Resolution No.
89-920.
Hence, this petition for review whereby petitioners seek the
reversal of Resolution No. 89-736 of the Civil Service
Commission and Resolution No. 89-920 which denied the
Motion for Reconsideration.
We shall first discuss whether the position of a provincial
attorney is primarily confidential so that the holder thereof
may be terminated upon loss of confidence.
In Cadiente vs. Santos, 1 this Court ruled that the position of
a city legal officer is undeniably one which is primarily
confidential in this manner:
In resolving the merits of the instant case, We find as an
undeniable fact that the position of a City Legal Officer is one
which is "primarily confidential." This Court held in the case
of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA
481, that the position of a City Legal Officer is one requiring
that utmost confidence on the part of the mayor be extended
to said officer. The relationship existing between a lawyer
and his client, whether a private individual or a public officer,
is one that depends on the highest degree of trust that the
latter entertains for the counsel selected. As stated in the
case of Pinero vs. Hechanova, L-22562, October 22, 1966,
18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil.
289), the phrase "primarily confidential" "denotes not only
confidence in the aptitude of the appointee for the duties of
the office but primarily close intimacy which insures freedom
of intercourse, without embarrassment or freedom from
misgivings of betrayals of personal trust on confidential
matters of state. (Emphasis supplied.)
The tenure of officials holding primarily confidential positions
ends upon loss of confidence, because their term of office
lasts only as long as confidence in them endure; and thus

their cessation involves no removal (Corpus vs. Cuaderno,


L-23721, March 31, 1965, 13 SCRA 591-596). When such
confidence is lost and the officer holding such position is
separated from the service, such cessation entails no
removal but an expiration of his term. In the case of
Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA
548, it was held
It is to be understood of course that officials and employees
holding primarily confidential positions continue only for so
long as confidence in them endures. The termination of their
official relation can be justified on the ground of loss of
confidence because in that case their cessation from office
involves no removal but merely the expiration of the term of
office two different causes for the termination of official
relations recognized in the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao
terminated the services of the petitioner, he was not removed
or dismissed. There being no removal or dismissal it could
not, therefore, be said that there was a violation of the
constitutional provision that "no officer or employee in the
civil service shall be suspended or dismissed except for
cause as provided by law" (Article XII-B, Section 1 (3), 1973
Constitution).
The matter of expiration of a term of an officer holding a
primarily confidential position, as distinguished from a
removal or dismissal, was further explained by this Court, in
the case of Ingles vs. Mutuc, L-20390, November 29, 1960,
26 SCRA 171, in this wise:
When an incumbent of a primarily confidential position holds
office at the pleasure of the appointing power, and the
pleasure turns into a displeasure, the incumbent is not
removed or dismissed from office his term merely expires,
in much the same way as an officer, whose right thereto
ceases upon expiration of the fixed term for which he had
been appointed or elected, is not and cannot be deemed
removed or dismissed therefrom, upon expiration of said
term.
The main difference between the former the primary
confidential officer and the latter is that the latter's term is
fixed or definite, whereas that of the former is not pre-fixed,
but indefinite, at the time of his appointment or election, and
becomes fixed and determined when the appointing power
expresses its decision to put an end to the services of the
incumbent. When this event takes place, the latter is not
removed or dismissed from office his term merely expired.
The foregoing merely elaborates what this Court, speaking
thru Justice J.B.L. Reyes, stressed in the case Corpus vs.
Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said
case We stated that:
The tenure of officials holding primarily confidential positions
ends upon loss of confidence, because their term of office

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lasts only as long as confidence in them endures, and thus
their cessation involves no removal. 2
In Besa vs. Philippine National Bank, 3 where petitioner, who
was the Chief Legal Counsel with the rank of Vice President
of the respondent Philippine National Bank, questioned his
being transferred to the position of Consultant on Legal
Matters in the Office of President, this Court, considering
said position to be primarily confidential held
It cannot be denied of course that the work of the Chief Legal
Counsel of respondent Bank, as of any lawyer for that
matter, is impressed with a highly technical aspect. As had
been pointed out, however, it does not mean that thereby a
client is precluded from substituting in his stead another
practitioner. That is his right; Ms decision to terminate the
relationship once made is impressed with the attribute of
finality. The lawyer cannot be heard to complain; it is enough
that his right to compensation earned be duly respected.
In that sense, it is equally clear that where the position
partakes of the attributes of being both technical and
confidential, there can be no insistence of a fixed or a
definite term if the latter aspect predominates. To paraphrase
the language of the Chief Justice in the opinion previously
cited, the incumbent of a primarily confidential position, as
was the case of petitioner, should realize that at any time the
appointing power may decide that his services are no longer
needed. As thus correctly viewed, Corpus v. Cuaderno
cannot be read as lending support to petitioner's efforts to
retain his position as Chief Legal Counsel of respondent
Bank, contrary to its wishes as so explicitly declared in its
Resolution No. 1053.
The question now is should the ruling in Cadiente be
made applicable to a provincial attorney? According to the
petitioners, Cadiente must be applied because by the nature
of the functions of a provincial attorney and a city legal
officer, their positions are both primarily confidential.
Respondents, on the other hand, maintain that since the Civil
Service Commission has already classified the position of
private respondent Arandela as a career position and
certified the same as permanent, he is removable only for
cause, and therefore Cadiente is not applicable.
We agree with the petitioners and answer the question
earlier propounded in the affirmative. A city legal officer
appointed by a city mayor to work for and in behalf of the city
has for its counterpart in the province a provincial attorney
appointed by the provincial governor. In the same vein, a
municipality may have a municipal attorney who is to be
named by the appointing power. The positions of city legal
officer and provincial attorney were created under Republic
Act No. 5185 which categorized them together as positions
of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City
Legal officer. To enable the provincial and city

governments to avail themselves of the full time and trusted


services of legal officers, the positions of provincial attorney
and city legal officer may be created and such officials shall
be appointed in such manner as is provided for under
Section four of this Act. For this purpose the functions
hitherto performed by the provincial and city fiscals in serving
as legal adviser and legal officer for civil cases of the
province and city shall be transferred to the provincial
attorney and city legal officer, respectively. (Emphasis
supplied.) 4
By virtue of Republic Act No. 5185, both the provincial
attorney and city legal officer serve as the legal adviser and
legal officer for the civil cases of the province and the city
that they work for. Their services are precisely categorized
by law to be "trusted services."
A comparison of the functions, powers and duties of a city
legal officer as provided in the Local Government Code with
those of the provincial attorney of Iloilo would reveal the
close similarity of the two positions. Said functions clearly
reflect the highly confidential nature of the two offices and
the need for a relationship based on trust between the officer
and the head of the local government unit he serves. The
"trusted services" to be rendered by the officer would mean
such trusted services of a lawyer to his client which is of the
highest degree of trust. 5
The fact that the position of respondent Arandela as
provincial attorney has already been classified as one under
the career service and certified as permanent by the Civil
Service Commission cannot conceal or alter its highly
confidential nature. As in Cadiente where the position of the
city legal officer was duly attested as permanent by the Civil
Service Commission before this Court declared that the
same was primarily confidential, this Court holds that the
position of respondent Arandela as the provincial attorney of
Iloilo is also a primarily confidential position. To rule
otherwise would be tantamount to classifying two positions
with the same nature and functions in two incompatible
categories. This being the case, and following the principle
that the tenure of an official holding a primarily confidential
position ends upon loss of confidence, 6 the Court finds that
private respondent Arandela was not dismissed or removed
from office when his services were terminated. His term
merely expired.
The attorney-client relationship is strictly personal because it
involves mutual trust and confidence of the highest degree,
irrespective of whether the client is a private person or a
government functionary. 7 The personal character of the
relationship prohibits its delegation in favor of another
attorney without the client's consent. 8
However, the legal work involved, as distinguished from the
relationship, can be delegated. 9 The practice of delegating
work of a counsel to his subordinates is apparent in the
Office of the Provincial Attorney wherein it can be gleaned

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from
the
power
granted
to
such
officer
to
exercise administrative supervision and control over the acts
and decision of his subordinates. 10
It is therefore possible to distinguish positions in the civil
service where lawyers act as counsel in confidential and
non-confidential positions by simply looking at the proximity
of the position in question in relation to that of the appointing
authority. Occupants of such positions would be considered
confidential employees if the predominant reason they were
chosen by the appointing authority is the latter's belief that
he can share a close intimate relationship with the occupant
which measures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal
of personal trust on confidential matters of state. 11
This implies that positions in the civil service of such nature
would be limited to those not separated from the position of
the appointing authority by an intervening public officer, or
series of public officers, in the bureaucratic hierarchy. This is
an additional reason why the positions of "City Legal Officer"
and "Private Secretary to the President" were considered
primarily confidential by the Court. 12 On the other hand, a
customs policeman serving in the Harbor Patrol, in relation to
the Commissioner of Customs, and an executive assistant,
stenographer, or clerk in the Office of the President, were not
considered so by the Court. 13
There is no need to extend the professional relationship to
the legal staff which assists the confidential employer above
described. Since the positions occupied by these
subordinates are remote from that of the appointing authority,
the element of trust between them is no longer predominant.
The importance of these subordinates to the appointing
authority now lies in the contribution of their legal skills to
facilitate the work of the confidential employee. At this level
of the bureaucracy, any impairment of the appointing
authority's interest as a client, which may be caused through
the breach of residual trust by any of these lower-ranked
lawyers, can be anticipated and prevented by the
confidential employee, as a reasonably competent office
head, through the exercise of his power to "review,
approve, reverse, or modify" their acts and decisions. 14 At
this level, the client can be protected without need of
imposing upon the lower-ranked lawyers the fiduciary duties
inherent in the attorney-client relationship. Hence, there is
now no obstacle to giving full effect to the security of tenure
principle to these members of the civil service.

their subordinates. The latter have been employed due to


their technical qualifications. Their positions are highly
technical in character and not confidential, so they are
permanent employees, and they belong to the category of
classified employees under the Civil Service Law. Thus, the
items of Senior Legal Officer and Legal Officer II remain
permanent as classified by the Civil Service Commission.
Consequently, the holders of the said items, being
permanent employees, enjoy security of tenure as
guaranteed under the Constitution.
This notwithstanding, petitioners contend that respondents
are estopped from protesting the termination of their services
because of their actions which, if taken together, would
allegedly reveal that they have accepted their termination,
such as: applying for clearances, not remaining in office and
signing their payroll for March 15, 1988 acknowledging
therein that their appointment "terminated/expired."
We cannot agree with petitioners in this regard. The
respondents did the above-mentioned acts because their
services were actually dispensed with by petitioner Governor
Grio. As a consequence of their termination, they could not
remain in office and as required of any government
employee who is separated from the government service,
they had to apply for clearances. However, this did not mean
that they believed in principle that they were validly
terminated. The same should not prevent them from later on
questioning the validity of said termination.
The facts clearly show that respondents protested their
termination with the Civil Service Commission within a month
from the time of their termination. The Court holds that the
said protest was filed within a reasonable period of time.
WHEREFORE, and in view of the foregoing, the petition is
GRANTED with respect to the position of provincial attorney
of Iloilo. Respondent Teotimo Arandela is hereby ordered to
vacate said position upon the finality of this Decision. The
Decision of the respondent Civil Service Commission
pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on
and Nelson Geduspan is hereby AFFIRMED.
SO ORDERED.

Thus, with respect to the legal assistants or subordinates of


the provincial attorney namely, Cirilo Gelvezon, Teodolfo
Dato-on
and
Nelson
Geduspan,
the Cadiente and Besa rulings cannot apply. To recall, said
cases specifically dealt with the positions of city legal officer
of the city and chief legal counsel of the PNB. There was no
reference to their legal staff or subordinates. As head of their
respective departments, the city legal officer, the provincial
attorney or the PNB chief legal counsel cannot be likened to

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tickets costing SFr. 1,597 for herself and her adopted
daughter Pia.

DE PERIO SANTOS v. MACARAIG


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No 94070 April 10, 1992


ROSALINDA DE PERIO SANTOS, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG and
SECRETARY RAUL MANGLAPUS, respondents.

GRIO-AQUINO, J.:
This is a petition for certiorari* seeking to set aside
Administrative Order No. 122 of the Office of the President,
finding the petitioner guilty of dishonesty and meting upon
her, after appreciating certain mitigating circumstances in her
favor, the penalty of reprimand with a warning that a
repetition of the same or similar offense will be dealt with
more severely. The President affirmed Assignment Order No.
58/88 dated April 27, 1988 of the Secretary of Foreign Affairs
recalling the petitioner to the home office from her post as
permanent representative to the Philippine Mission to the
United Nations and other International Organizations
(MISUNPHIL, for short) in Geneva, Switzerland (pp. 8499, Rollo).
Petitioner Rosalinda de Perio-Santos, a career service officer
with the rank of Chief of Mission II and Ambassador
Extraordinary and Plenipotentiary, was appointed on July 24,
1986, by her Excellency, President Corazon C. Aguino, to the
position of Permanent Representative of the Philippines to
the Philippine Mission to the United Nations and other
International Organizations with station in Geneva,
Switzerland (Annexes A and B, pp. 33-34,Rollo).
On April 6, 1987, petitioner sought a leave of absence from
the Department of Foreign Affairs (DFA) to spend the Easter
Holidays in New York, U.S.A., with her mother, brothers and
sisters at no expense to the Government (p. 84, Rollo). She
bought two (2) non-transferable, non-refundable discounted

Before they could leave Geneva, petitioner received


instructions from the home office directing her to proceed to
Havana as a member of the Philippine delegation to the
UNCTAD G-77 Preparatory Conference from April 20-26,
1987 (Ibid.). For the official trip outside her station, she was
entitled, under the "Foreign Service Personnel Manual on
Travel, Per Diems, and Daily Allowance Abroad,"
to SFr. 2,996 for the cost of economy roundtrip fare from
Geneva-New York-Geneva portion of her Geneva-New YorkHavana-New York-Geneva trip. (Annexes C and D, pp. 3537, Rollo) Instead of buying an economy roundtrip ticket, she
used for the Geneva-New York-Geneva portion of her trip the
two (2) discounted tickets costing only SFr. 1,597 for herself
and her daughter Pia. They left Geneva for New York en
route to Havana on April 15, 1987. On the same day, the
DFA approved her application for a leave of absence with
pay from April 27 to May 1, 1987 (Ibid.).
After the Havana Conference, she and her daughter spent
her vacation leave in New York before returning to Geneva
(Ibid.).
Instead of claiming reimbursement for SFr. 2,996, she
requested, and received, reimbursement of only SFr. 1,597
which she spent for the Geneva to New York, and New York
to Geneva portion of her trip, thereby effecting savings of
SFr.1,399 for the Government (p.35, Rollo).
On September 16, 1987, the DFA sent her a cable (GE202/87) requesting clarification on "why Mission paid for
plane ticket of infant Pia de Perio-Santos (petitioner's
daughter) Geneva-New York-Geneva per CV 216/87 when
she was not authorized to accompany her adopting mother
at government expense.(Ibid.)
Petitioner replied that the air fare tickets were for her only
and did not include her daughter whose trip was paid from
her personal funds (p. 86, Rollo).
On September 21, 1987, the DFA required her to refund the
amount representing her daughter's round-trip ticket since
DFA received a copy of the "facture" from the travel agency
showing that the amount of SFr.1,597 was in payment of (a)
1 billet adulte-Geneva/New York/Geneva SFr. 950, and (b) 1
billet enfant-Geneva/New York/Geneva SFr. 673; and that
the sum of SFr. 673 represented the cost of her daughter's
portion of the ticket (p. 86, Ibid.).
Instead of refunding only the sum of Sfr. 673 to the
Government, petitioner returned the full amount of SFr.1,597
(Annex E, pp. 38 and 86, Rollo). She thereafter claimed
payment for one round-trip economy plane ticket (GenevaNew York-Geneva) in the amount of SFr. 2,996 to which she
was entitled under the Foreign Service Personnel Manual on
Travel, Per Diems and Daily Allowance Abroad.

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On October 5, 1987, Deputy Armando Maglaque, and some
MISUNPHIL employees filed administrative charges against
her for "incompetence; inefficient; corrupt and dishonest
activities; rude and uncouth manners; abusive and highhanded behavior; irregular and highly illegal transactions
involving funds of the mission." The charges were referred to
Ambassador Luis Ascalon for initial investigation (Comment,
p. 182, Rollo). Petitioner explained the circumstances of the
purchase of the discounted tickets. On November 26, 1987,
Ambassador Ascalon submitted his findings which, with the
complaints, were referred to a 5-man Ad Hoc Investigation
Committee for preliminary investigation (p. 86, Rollo). The
Committee found a prima facie case against petitioner for (1)
dishonesty; (2) violation of existing rules and regulations; (3)
incompetence and inefficiency; and (4) conduct prejudicial to
the best interest of the service.

an opportunity to defend herself against the charge of


misconduct which was deemed to have been filed by the
Secretary himself since an administrative complaint can be
initiated directly by the Department Head (Sec. 37[b], P.D.
807) (p. 91, Rollo).

Ambassador Eduardo Rosal also charged her with estafa


before the Tanodbayan. The case was dismissed for
insufficiency of evidence (p. 87, Rollo).

On January 24, 1989, President Aquino nominated Narcisa


L. Escaler as Ambassador and Permanent Representative to
the United Nations and other International Organizations in
Geneva in lieu of the petitioner. The nomination was
confirmed by the Commission on Appointments on March 15,
1989 (pp. 191, 224, Rollo).

On November 23, 1987, DFA recalled her to Manila for


consultation. She came home on November 29, 1987 (p.
86, Rollo).
On March 17, 1988, the Board of Foreign Service
Administration (BFSA) constituted a new 5-man investigating
committee to evaluate the evidence presented by the parties.
Three (3) members of the committee, (Atty. Pineda and
Ambassadors Pastores and Garrido) found her liable
formisconduct only, and recommended dismissal of the other
charges. They also recommended that she be reprimanded
and recalled to Manila. Ambassador Arague dissented with
respect to the penalty, which he thought should include a sixmonth suspension. Atty. De Vera found all the
charges against Ambassador de Perio-Santos "to be
unmeritorious." (pp. 87-88, Rollo.)
The BFSA met en banc on April 22, 1988 to consider the
memorandum-report of the new Investigating Committee. On
April 26, 1988, the BFSA, through its Chairman,
Undersecretary Jose D. Ingles, submitted a memorandum to
the Secretary of Foreign Affairs (SFA), adopting the findings
and recommendations of the investigating committee.
In a letter-decision dated April 27, 1988 (p. 50, Rollo), the
Secretary of Foreign Affairs affirmed the BFSA's
recommendation declaring Ambassador de Perio-Santos
guilty of the lesser offense of misconduct, instead of
dishonesty, meted to her the penalty of reprimand, and
recalled her to the home office.
Petitioner filed a motion for reconsideration on the ground
that she was denied due process when she was declared
guilty of misconduct although it was not one of the charges
against her. Conceding that point, the Secretary ordered the
records remanded to the BFSA for hearing to give petitioner

Insisting that no formal charge of misconduct had been filed


against her, and that hence, there was nothing to investigate
(p. 91, Rollo), petitioner refused to attend the hearing.
Consequently, in his resolution of August 18, 1988, Secretary
Manglapus declared his decision of April 27, L988, "final and
executory, effective immediately." (Annex Q, p. 72, Rollo)
Petitioner appealed that resolution to the Office of the
President, where it was docketed as O.P. Case No. 3903 (p.
91, Rollo).

On March 30, 1989, President Aquino issued Administrative


Order No. 122 (Annex S, pp. 84-99, Rollo) finding petitioner
guilty of dishonesty (instead of misconduct) and imposed
upon her the penalty of reprimand, with recall to the home
office.
The finding of dishonesty was based on:
1. The certification which was made in support of her request
for reimbursement of the discounted round-trip ticket stating
that "she purchased the said round trip ticket, which consists
of two (2) one-way tickets (instead of two roundtrip tickets),
one from Geneva to New York and the other from New York
to Geneva, as shown in the attached receipt ('quittance') of
payment to the travel agency. Hence, she was reimbursed,
per Check No. UBS-4455589 dated May 7, 1987." (p.
95, Rollo)
2. The allegation in her telex ZGE-373-87 (in answer to DFA
cable of September 16, 1987) that the Geneva Mission
"never paid for the trip of Ambassador de Perio-Santos'
daughter to Mexico which was paid from ambassador's
personal fund" (although the DFA in fact refunded Pia's
portion of the discounted round-trip tickets from Geneva-New
York-Geneva). (p. 95, Rollo)
Petitioner filed a motion for reconsideration and a
supplemental memorandum and letter addressed to the
President (Annexes X, Y and Z, pp. 146-265, Rollo).
In a Resolution dated January 9, 1990 (Annex AA, pp. 166167, Rollo), respondent Executive Secretary Catalino

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Macaraig, Jr., by authority of the President, denied the
motion for reconsideration.
In due time she filed this petition for certiorari alleging that
the President's "reprimand and recall orders are not
supported by substantial evidence and were issued with
gross abuse of discretion and serious error of law" (p.
15,Rollo). The petition has merit.
The general rule is that the factual findings of administrative
agencies are binding on this Court and controlling on the
reviewing authorities if supported by substantial evidence
(Planters Products, Inc. vs. NLRC, 169 SCRA 328; Doruelo
vs. Ministry of National Defense, 169 SCRA 448). Courts of
justice will not interfere with purely administrative matters
rendered by administrative bodies within the scope of their
power and authority (Gegare vs. CA, 177 SCRA 471).
A careful review of the records fails to yield any evidence of
dishonesty on the part of the petitioner, or an intent to cheat
and defraud the government. Her failure to disclose the fact
that her discounted tickets included the fare for her child,
was harmless and inconsequential as the two (2) discounted
Geneva-New York-Geneva tickets for herself and her
daughter were in fact inseparable, intransferable, noncancellable and non-refundable, in effect one whole fare
only, for purposes of the discount. The mother and daughter
tickets were, in the words of the petitioner, "married to each
other" (p. 8, Rollo). One without the other would not have
been entitled to the discount. And if she left her daughter
behind, it would have made no difference in the fare because
the ticket was not refundable.
Using the discounted tickets was beneficial to the
Government for they cost 50% less than an economy
roundtrip ticket that the petitioner was entitled to purchase
for the same trip if she travelled alone. She obviously saved
money (SFr.1,399) for the government by using her
discounted tickets even if her daughter's fare was included
therein.
Since petitioner was moved by the best of motives in using
the discounted tickets which she had purchased before she
received the order to attend the UNCTAD conference in
Havana, her action should be commended instead of
condemned (Hernandez vs. Chairman, Commission on
Audit, 179 SCRA 39).
Petitioner's problems probably would not have arisen if
before embarking on the Havana trip she had asked DFA for
permission to use the two (2) discounted round-trip tickets
for the Geneva-New York-Geneva portion of her trip. Her
inadvertence was construed by the Government as lack of
candor and honesty on her part. The Court believes however
that she did not intend to falsify or conceal the truth when
she filed a claim for the refund of the total cost of her
discounted tickets (SFr.1,597). Her claim for the whole
discounted fare was based on the fact that her daughter's

ticket was inseparable from her own fare. They had to go


together to be entitled to the special discount. Their fare was
indivisible, hence, the Government's offer to shoulder only
the petitioner's portion of the discounted fare (SFr. 950),
excluding her daughter's portion (SFr. 647) was neither fair
nor reasonable.
In view of the DFA's objection to the refund of the entire
discounted fare to her, the petitioner returned the whole
amount of SFr.1,597 which she had earlier received from the
DFA, and asked, in return, for the cost of the regular
economy fare (SFr. 2,966) which she was legally entitled to
purchase for her trip. Thereupon, the Secretary reprimanded
her for misconduct and recalled her to the home office. On
appeal to the Office of the President, the latter ironically
found her guilty of the more serious offense of dishonesty,
reprimanded her therefor, and recalled her to Manila. We
hold that under the circumstances above narrated, the
petitioner's actuation constituted neither dishonesty nor
misconduct, hence, the reprimand that was meted to her was
unmerited.
Nevertheless, the Court is not disposed to disturb the order
of the DFA and the Office of the President recalling the
petitioner to the home office. There is no merit in the
petitioner's contention that her tour of duty in Geneva was for
four (4) years, as provided in Section 260 of P.D. No. 1578
("Instituting the Administrative Code of 1978'), thus:
(b) Tour of duty (1) The tour of duty of a foreign service
officer at any post shall be four (4) years commencing on the
date of his arrival at the post, after which he shall be
transferred to another post. (p. 15, Rollo)
As pointed out by the Solicitor General, P.D. 1578 was one of
those unpublished "secret" decrees which this Court
in Taada, et al. vs. Tuvera, et al., 146 SCRA 446, declared
to be inoperative or without legal force and effect. P.D. 1578
was expressly repealed on May 5, 1987, by Executive Order
No. 168, entitled "REPEALING PRESIDENTIAL DECREE
NO. 1578 ENTITLED 'INSTITUTING THE ADMINISTRATIVE
CODE OF 1978.'"
The applicable law therefore is Section 6, Part B, Title III, of
R.A. 708, "The Foreign Service Act of the Philippines,"
enacted on June 5, 1952, providing that:
Sec. 6. Assignments and Transfers A Foreign Service
Officer may be assigned by the Secretary to serve in the
Department or in a diplomatic or consular post abroad:
Provided, however, that the minimum period during which he
may serve in any foreign post shall be one year and the
maximum period four years, except in case of emergency or
extraordinary circumstances, in which event he may be
tranferred from one foreign post to another or to the
Department by the order of the Secretary without regard to
his length of service in his former post. (Emphasis supplied;
p. 202,Rollo.)

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Since the petitioner had been appointed to her post on July
24, 1986, she had already served the minimum one-year
period of service when her recall on April 22, 1988 came.
Her reassignment to Manila did not have to be explained and
justified by the Secretary of Foreign Affairs nor the President
of the Philippines (p. 51, Rollo).
The presidential prerogative to determine the assignments of
the country's diplomatic personnel is unquestionable. As
discussed in the Solicitor General's "Comment" on the
petition for certiorari and prohibition
The conduct of the country's foreign affairs is vested on the
President through respondent Manglapus as alter ego of the
President. As head of the Department of Foreign Affairs, he
is mandated by law to maintain the country's representation
with foreign governments, the United Nations (UN),
Association of Southeast Asian Nations (ASEAN), and other
international and regional organizations. The foreign service
officers and employees abroad represent the interest of the
Philippines under the direction, supervision and control of the
Chief Executive through respondent Secretary.
xxx xxx xxx
Considering that the conduct of foreign relations is primarily
an executive prerogative, courts may not inquire into the
wisdom or unwisdom in the exercise thereof. This is a
principle laid down by the courts from time immemorial. The
power to conduct foreign policy and its necessary element of
assigning the, country's representatives abroad is best
addressed to the wisdom of the executive branch and not to
be unduly interfered with by the judiciary (U.S. v. Curtiss
Wright Export Corp., 299 U.S. 304; Missouri v. Holland, 352
U.S. 416; U.S. v. Belmont, 301 U.S. 324; U.S. v. Pink, 315
U.S. 203; Jones v. U.S., 137 U.S. 202, 212; Oetegen v.
Central Leather Co., 246 U.S. 297, 302; Foster v. Neilson, 2
Pet. 253, 30709; Williams v. Suffolf Insurance Co., 13 Pet.
414, 419-20; Zemel v. Rusk, 381 U.S. 17;Harisiades vs.
Shughnessy, 342 U.S. 580; Chicago Southern Air Lines
Inc. v. Loatherman S.S. Corp., 333 U.S. 103; Haig v. Agee,
453 U.S. 280). In States which follow the principle of
separation of powers like the United States and the
Philippines, the President holds actual executive power,
including the power to conduct foreign relations (Public
International Law, Coquia and Santiago, 1984 ed., p. 480).
On this, textwriters are nign unanimous:
The head of State, as the State's Chief organ and
representative in the totality of its international intercourse,
with the consequence that all his, legally relevant
international acts are considered acts of his state. Such acts
comprises chiefly the reception and sending of diplomatic
agents, and consuls, conclusion of treaties, and recognition
of states. (Ibid, p. 481, citing Fenwick, International Law, 554
[1965], at p. 758.)

The conduct of the external affairs of the State is an


executive prerogative. As head of the State, the President
deals with foreign states and governments with respect to
matters relating to entering into treaties, maintaining
diplomatic relations, extending or withholding recognition.
Chief Justice Marshall described the President of the United
States as the 'sole organ of the nation in its external relations
and its sole representative with foreign nations.' This apt
description likewise applies to the President of the
Philippines." (Aonuevo-Taro, The 1987 Constitution of the
Philippines Explained, 1989 ed., p. 263-264.)
Thus, the assignment to and recall from posts of
ambassadors are prerogatives of the President, for her to
exercise as the exigencies of the foreign service and the
interests of the nation may from time to time dictate. (pp.
204-207, Rollo.)
The petitioner's designation as the permanent representative
of the Philippine Government to the United Nations and other
International Organizations in Geneva (Annex B, p.
34, Rollo), was one based on the special trust and
confidence which the appointing power, the President, had in
the appointee. Once that trust and confidence ceased to
exist, the incumbent's continuance in the position became
untenable.
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 (Corpus vs.
Cuaderno, 13 SCRA 591). When that confidence is lost and
the officer holding the position is separated from the service,
such cessation is not removal from office but merely an
expiration of his/her term (Cadiente vs. Santos, 142 SCRA
280).
An incumbent of a primarily confidential position holds office
at the pleasure of the appointing power. When the pleasure
turns into displeasure, the incumbent is not removed or
dismissed from office his term merely expires (Ingles vs.
Mutuc, 26 SCRA 171).
"Primarily confidential" denotes "not only confidence in the
aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state"
(Pinero vs. Hechanova, 18 SCRA 417; citing De los Santos
vs. Mallare, 87 Phil. 289).
It is the fact of loss of confidence, not the reason for it, that is
important and controlling. As holder of a primarily confidential
position, petitioner's foreign assignment was at the pleasure
of the President. The recall order terminating her tour of duty
in Geneva and returning her to the home office was merely a
change of post or transfer of location of work.

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Petitioner may not justifiably assail the appointment of
Narcisa Escaler as her replacement in Geneva because the
power to appoint is essentially discretionary. The appointing
power, the President, has the right of choice which she may
exercise freely, according to her best lights (Pamantasan ng
Lungsod ng Maynila vs. Court of Appeals, 140 SCRA 22).
This Court may not order the reinstatement of the petitioner
to her former position in Geneva for that would be
tantamount to a usurpation by this Court of the power of
appointment, which is the exclusive prerogative of the Chief
Executive (Article VII, Section 16, 1987 Constitution). It
would violate the system of separation of powers which
inheres in our democratic republican form of government.
The recall order issued by the Secretary of Foreign Affairs
(Assignment Order No. 58/88) was a valid exercise of his
authority as an alter ego of the President (Villena vs.
Secretary of Interior, 67 Phil. 451). His acts, "performed and
promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive
presumptively the acts of the latter (Cruz, Political Law, p.
188, 1987 Edition). His order recalling the petitioner to the
home office, having been affirmed by the President, any
doubts as to its validity and propriety have thereby been laid
to rest.
WHEREFORE, Administrative Order No. 122 of the Office of
the President, insofar as it finds the petitioner guilty of
dishonesty and reprimands her therefor, is hereby set aside.
However, the order recalling her to the home office in Manila
is affirmed. No costs.
SO ORDERED.
MAQUERA v. BORRA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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

vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION

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, VicePresident, 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;

FELIPE N. AUREA and MELECIO


MALABANAN, petitioners,

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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.
LABO v. COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.

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 twentyone 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

Rillera and Quintana for private respondent.

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For his part, the private respondent denies that the filing fee
was paid out of time. In fact he says, it was fliedahead 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 preproclamation 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 redocketed 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 preproclamation 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 firstmentioned 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 Ta;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, theCommission 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 thequo
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:

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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
deemedpro 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
xxx
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).lwph1.t 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
xxx
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

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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

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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. B323985. 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

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thereupon cancel their certificate of registration. (Emphasis
supplied.)

the election, he was obviously not the choice of the people of


Baguio city.

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 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

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

Re-examining that decision, the Court finds, and so holds,


that it should be reversed in favor of the earlier case
ofGeronimo 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

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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.

SEC. 40, R.A. 7160


Republic of the Philippines
Congress of the Philippines
Metro Manila

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 rededication 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.

Eighth Congress

Republic Act No. 7160


October 10, 1991
Setion 41(b) Amended by RA 8553
Setion 43 Amended by RA 8553
AN ACT PROVIDING FOR A LOCAL GOVERNMENT
CODE OF 1991
xxx
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an offense
punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political
cases here or abroad;
(f) Permanent residents in a foreign country or
those who have acquired the right to reside abroad
and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.

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