1

G.R. No. 166715

August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S.
ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his
capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as
Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA)
93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all
officials and employees of the BIR and the BOC with at least six months of service, regardless of employment
status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken
from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of
the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary,
the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director
General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from
the rank-and-file employees and a representative from the officials nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of
the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue
collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board;
(4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules
and regulations and (6) submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax
reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s]
the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their
best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid
basis for classification or distinction as to why such a system should not apply to officials and employees of all
other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as
it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC
officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%,
the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has
been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

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Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the
doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy
requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the
reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in
conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the
functions they perform are distinct from those of the other government agencies and instrumentalities.
Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its
provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than
violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have
failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be
discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible
of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for
adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged
has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed
by a favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere
enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and
concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a
personal stake in the outcome of this case or an injury to themselves. On this account, their petition is
procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The
grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law.
And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice,
and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit
of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive
to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and
reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and
employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-generation
capability and collection.15

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The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere
conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty
hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA
9335 based on petitioners baseless supposition is an affront to the wisdom not only of the legislature that
passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs
as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the
laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in
detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence
of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty
hunting or mercenary activity" or the product of the irregular performance of official duties. One of these
precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and
employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be
held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished.19 When things or persons are different in
fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this
Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require
that things which are different in fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.

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In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. Neither is it necessary
that the classification be made with mathematical nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis
supplied)
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC.23 Since the subject of
the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the
BIR and the BOC because they have the common distinct primary function of generating revenues for the
national government through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and
subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the
President upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx

xxx

xxx (emphasis supplied)

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

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the
management and control of the Commissioner of Customs, who shall be appointed by the President upon the
recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the
following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of
entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx

xxx

xxx (emphasis supplied)

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Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably,
such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification
and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the
sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or
implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegates authority and prevent the delegation from
running riot.27 To be sufficient, the standard must specify the limits of the delegates authority, announce the
legislative policy and identify the conditions under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of
rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance
Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed
their revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix
revenue targets:
SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is
hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the
following percentages:
Excess of Collection of the Excess the Revenue Targets
Percent (%) of the Excess Collection to Accrue to the Fund
30% or below
15%
More than 30%
15% of the first 30% plus 20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a
given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue
targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of
the BOC.
xxx

xxx

xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the
BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to
Congress.30 Thus, the determination of revenue targets does not rest solely on the President as it also
undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under
which officials and employees whose revenue collection falls short of the target by at least 7.5% may be
removed from the service:

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

xxx

xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue
collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this
Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no
historical record of collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under
consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of
revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or
customs officials or employees has suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That
such decision shall be immediately executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be without prejudice to the application of
other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;
xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The
guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the employee.31 In the case of RA
9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at
least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action
under civil service laws.32 The action for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and
equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the declared
policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with
public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight
Committee composed of seven Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two
senators representing the minority. The Members from the House of Representatives shall be appointed by the
Speaker with at least two members representing the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to
exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22,
2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of
its alleged encroachment on the executive function of implementing and enforcing the law may be considered
moot and academic.

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This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for
that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in
Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns
post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program
objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and
dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity
with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress
has delegated an enormous amount of legislative authority to the executive branch and the administrative
agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their
functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three
categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its
primary purpose is to determine economy and efficiency of the operation of government activities. In the
exercise of legislative scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of the agency involved.
xxx

xxx

xxx

b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available,
congressional investigation involves a more intense digging of facts. The power of Congress to conduct
investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with the
force of law. These provisions require the President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative
veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain
period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it.

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Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative
and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive
branch or to independent agencies while retaining the option to cancel particular exercise of such power without
having to pass new legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected administrative agencies.
One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and
practice. It suffices to say that the complexities of modern government have often led Congress-whether by
actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims,
but leaves their implementation to the judgment of parties who may or may not have participated in or agreed
with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our
constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course,
is the legislative power to enact new legislation or to change existing law. But without some means of
overseeing post enactment activities of the executive branch, Congress would be unable to determine whether
its policies have been implemented in accordance with legislative intent and thus whether legislative
intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives.
They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny
and investigation; any measure beyond that would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto
authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents
counter that legislative veto enhances separation of powers as it prevents the executive branch and
independent agencies from accumulating too much power. They submit that reporting requirements and
congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals before they take effect and they do not
afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those
enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that
legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means
Congress has yet devised to retain control over the evolution and implementation of its policy as declared by
statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative
veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha
pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives
passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by
resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in
the United States. The immigration judge reopened the deportation proceedings to implement the House order
and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding
that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth
Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)
(2) violated the constitutional doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the
issue of separation of powers and instead held that the provision violates the presentment clause and
bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade
Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing
legislative veto provisions although some of these provisions required the approval of both Houses of Congress
and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and considering the
nature and powers of a constitutional body like the Commission on Elections, the Court struck down the
provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The

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committee was tasked not only to monitor and evaluate the implementation of the said law but also to review,
revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these
functions infringed on the constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic
system of government. It may in fact even enhance the separation of powers as it prevents the overaccumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its
committees or its members with either executive or judicial power.38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the
Constitution,39 including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses
on any matter pertaining to their departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As
such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an
agency to which Congress has by law initially delegated broad powers.43 It radically changes the design or
structure of the Constitutions diagram of power as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards.46 In the latter
case, the law must be complete in all its essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it
formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and interpret the law which they
are entrusted to enforce have the force of law and are entitled to respect.49 Such rules and regulations partake
of the nature of a statute50 and are just as binding as if they have been written in the statute itself. As such,
they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are
set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the
role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve
or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA
9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a
condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on
presentment.52

10
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which
consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power
requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor
by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a singlechamber legislative veto and a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If
he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be
sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved
by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House
shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days
after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid
legislative act with the force of law, it cannot take effect without such presentment even if approved by both
chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President.55 As summarized by Justice
Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for some measures
that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by the Senate
President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose,
they may all be consolidated into one bill under common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its
entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage
in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are distributed at least
three days before the third reading. On the third reading, the members merely register their votes and explain
them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings.
If there are differences between the versions approved by the two chambers, a conference committee58
representing both Houses will draft a compromise measure that if ratified by the Senate and the House of
Representatives will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59
The Presidents role in law-making.

11
The final step is submission to the President for approval. Once approved, it takes effect as law after the required
publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be complete in all its essential terms and conditions when it
leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it
becomes effective because it is only upon effectivity of the statute that legal rights and obligations become
available to those entitled by the language of the statute. Subject to the indispensable requisite of publication
under the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of
Congress.62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires
the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of
the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of separation of
powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to
approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a
provision that allows Congress or its members to overturn any directive or ruling made by the members of the
executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be
similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an appropriate case assailing those
provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the
other provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the
remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and
effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is
valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability
clause in a statute creates the presumption that the legislature intended separability, rather than complete
nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that
it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not
constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent and connected,
as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the
legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the
statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried
out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional,
all the other provisions thus dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid
provision from the other provisions so that the latter may continue in force and effect. The valid portions can
stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a
complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation
capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the
Rewards and Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or
implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in
two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and unless the
contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional
Oversight Committee.

12
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and regulations of the law is declared
UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335
is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect.
SO ORDERED.
xxxxxxxxxxxxxxxxxxx
DE LA CRUZ vs COURT OF APPEALS
Facts:
- Consolidated petitions arising from Metro Manila public school teachers' mass actions (equivalent to strike)
of September/October 1990. They were simultaneously charged, preventively suspended, and eventually
dismissed in October 1990 by then Secretary Isidro D. Cario of DECS,
- Petitioners appealed to the (MSPB) and then to (CSC). CSC found petitioners guilty of "conduct prejudicial to
the best interest of the service". In view of having out for service and automatic implementation, they were
ordered for immediate reinstatement.
- Petitioners appealed in SC but was directed to CA, both 3 rd and 10th division dismissed the case due to lack
of merit.
Contention of Petitioners:
- They should not have been penalized for participating in the mass actions because they were merely
exercising their constitutional right to free assembly. Moreover petitioners insist that the mass actions of
September/October 1990 were not "strikes" as there was no actual disruption of classes.
Contention of CA:
-Public school teachers' mass actions were "to all intents and purposes a strike . . . constituting a concealed and
unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for
essentially economic reasons."
Ruling:
- Jurisprudence provides that mass actions staged by Metro Manila public school teachers was beyond
constitutional rights within reasonable limits and "amounted to a strike in every sense of the term,
constituting as they did, a concerted and unauthorized stoppage/absence from sworn duty for essentially
economic reasons to protest and pressure the Government to act on their grievances
- Rights of free expression and assembly occupy a preferred position in the hierarchy of civil liberties but
higher consideration involved in the case of the striking teachers was the education of the youth which
must, at the very least, be equated.
- Refusal of the striking teachers to call the mass actions the term "strike" did not erase the true nature of the
mass actions. Such were penalized not because they exercised their right to peaceably assemble but
because of the manner by which such right was exercised, i.e., going on unauthorized and unilateral
absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon
the students for whose education the teachers were responsible.
- Even petitioners contended that there was no actually disruption due to appointed substitute teachers,
effects of the mass protests did not erase the administrative liability of petitioners for the intended
consequences thereof which were the very reason why such prompt remedial action became necessary.
- They be awarded back wages for the period when they were not allowed to work by reason of the supposed
unjustified immediate implementation of the dismissal orders of Secretary Cario while awaiting resolution
of their appeals by the MSPB and CSC
- As to the immediate execution of the decision of the Secretary, the same is authorized by Sec 47, par(2), of
EO No. 292, thus: "The Secretaries and heads have jurisdiction to investigate and decide matters involving
disciplinary action and their decision shall be final if suspension is not more than 30 days, 30 days worth of
salary, even appealable to commission except if removal, such is executory only after confirmation by the
Secretary concerned. Hence, being legal, the immediate execution of the dismissal orders could not be
considered unjustified.
- Having been found to have actually participated in the illegal mass actions although liable for a lesser
offense (not equivalent to exoneration), petitioners could not be considered as fully innocent.

NAZARENO vs CITY OF DUMAGUETE

Facts:

13
-

Petition seeks to reverse the Decision of the Court of Appeals. CSC Field Offices (CSFO) invalidated of
petitioners appointments as employees of the City of Dumaguete, which was affirmed by the CSC Regional
Office, by the Commission en banc and by the Court of Appeals.
Pursuant to the Commissions Accreditation Program, the CSC issued Resolution No. 992411,[3] which
granted the City Government of Dumaguete the authority to take final action on all its appointments,
provided that done according to Civil Service Law, rules and regulations and CSC Accreditation Program as
amended, monthly monitoring by CSFO and violation shall immediately invalidate the appointment.
Outgoing Mayor Felipe Remollo, who lost to Agustin Perdices, promoted 15 city hall employees, and
regularized another 74 city hall employees, including the herein 52 petitioners. Such was not honored by
Perdices
Petitioners filed a Petition which sought to enjoin respondents from taking any action or issuing any orders
nullifying their appointments. RTC dismissed the case, including the motion to reconsider.
CSC Field Office Director II Fabio R. Abucejo, revoked and invalidated the appointments of the petitioners as
the same were done in violation of CSC Resolution No. 010988 which provides prohibition in issuing
appointments or hiring new employees during the prohibited period of 2 months immediately before the
next presidential elections and up to the end of his term, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger public safety
All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except
in cases of renewal and reinstatement, regardless of status, which are issued AFTER the elections,
regardless of their dates of effectivity and/or date of receipt by the Commission, including its Regional or
Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case may be, shall be
disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the
prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger
public safety;
d) That the appointment is not one of those mass appointments issued after the elections.
4. The term mass appointments refers to those issued in bulk or in large number after the elections by an
outgoing local chief executive and there is no apparent need for their immediate issuance.
On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before
the CSC Region VII Office in Cebu. The motion was, however, denied on the ground that it should have been
filed before the office of Director Abucejo in Dumaguete City. Thereafter, on October 31, 2001, petitioners asked
the CSC Region VII Office in Cebu to treat their previous Motion for Reconsideration as their appeal.
On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an
Appeal to the Commission en banc was filed through registered mail by 52 of the original 89 appointees, the
petitioners herein, namely:

Ruling of the CSC en banc and the Court of Appeals

On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and
affirming the invalidation of their appointments on the ground that these were mass appointments made by an
outgoing local chief executive.[10] The Commission explained:
The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The
prohibition is designed to discourage losing candidates from extending appointments to their protgs or from
giving their constituents promised positions (CSC Resolution No. 97-0317 dated January 17, 1997, Re: Roldan
B. Casinillo). Moreover, the same is intended to prevent the outgoing local chief executive from hurriedly issuing
appointments which would subvert the policies of the incoming leadership. Thus, any means that would directly
or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed,
particularly when the appointments were issued by the appointing authority who lost in said election.

14
Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005,
through CSC Resolution No. 050473.
Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEBSP No. 00665. On August 28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution No.
040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, ratiocinating that:
The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the
nefarious practice by outgoing local chief executives in making appointments before, during, and/or after the
regular local elections for ulterior partisan motives. Said practice being analogous to midnight appointments
by the President or Acting President, the CSC then promulgated Resolution No. 010988, to suppress the mischief
and evils attributed to mass appointments made by local chief executives.
Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January
11, 2008.
THE PARTIES ARGUMENTS
Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is
without authority to issue regulations prohibiting mass appointments at the local government level. Petitioners
cite De Rama v. Court of Appeals[11] which held that Section 15, Article VII of the Constitution is only applicable
to the President or Acting President. They claim that outgoing or defeated local appointing authorities are
authorized to make appointments of qualified individuals until their last day in office, and that not all mass
appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to
take final action on all appointments, the Commission did not have any authority to disapprove the
appointments made by outgoing mayor Remollo.
In their Comment dated May 15, 2008,[12] respondents argue that petitioners appointments violated civil
service rules and regulations other than CSC Resolution No. 010988. Respondents also assert that the
Commission is authorized to invalidate the petitioners appointments, because the CSC accreditation program
carried with it the caveat that said exercise of authority shall be subject to Civil Service law, rules and
regulations. Finally, respondents claim that petitioners were guilty of forum shopping because the issues in this
case and in G.R. No. 177795 are the same.
OUR RULING
We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that
the invalidation of petitioners appointments was warranted. Consequently, we affirm the Decision of the Court
of Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No. 00665.
The CSC has the authority to establish rules to promote efficiency in the civil service
The Commission, as the central personnel agency of the government,[13] has statutory authority to
establish rules and regulations to promote efficiency and professionalism in the civil service. Presidential Decree
No. 807,[14] or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including
the power to issue rules and regulations and to review appointments:
Section 9: Powers and functions of the Commission The Commission shall administer the Civil Service and
shall have the following powers and functions:
xxxx
(b)
Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of
this Decree x x x
(c)
Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to
promote economical, efficient, and effective personnel administration in the government;
xxxx
(h)
Approve all appointments, whether original or promotional, to positions in the civil service, except those
of presidential appointees, members of the armed forces of the Philippines, police forces, firemen, and

15
jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required
qualifications; (Emphasis supplied)
Executive Order No. 292, or the Administrative Code of 1987, also provides:
Section 12:

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

xxxx
(2)
prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil
Service Law and other pertinent laws;
(3)
promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to
promote economical, efficient, and effective personnel administration in the government;
(4)
take appropriate action on all appointments and other personnel matters in the Civil Service including
extension of Service beyond retirement age;
(5)
inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices,
local government units, and other instrumentalities of the government, including government owned and
controlled corporations. (emphasis supplied)
Clearly, the above-cited statutory provisions authorize the Commission to prescribe, amend, and enforce
rules to cover the civil service. The legislative standards to be observed and respected in the exercise of such
delegated authority are set out in the statutes, to wit: to promote economical, efficient, and effective personnel
administration.
The Reasons behind CSC Resolution No. 010988
We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true
that there is no constitutional prohibition against the issuance of mass appointments by defeated local
government officials prior to the expiration of their terms. Clearly, this is not the same as a midnight
appointment, proscribed by the Constitution, which refers to those appointments made within two months
immediately prior to the next presidential election.[15] As we ruled in De Rama v. Court of Appeals:[16]
The records reveal that when the petitioner brought the matter of recalling the appointments of the
fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these
were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the
CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in
fact, there is no law that prohibits local elective officials from making appointments during the last days of his or
her tenure.
However, even while affirming De Rama, we explained in Quirog v. Aumentado,[17] that:
We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind
the prohibition against midnight appointments may not be applied to those made by chief executives of local
government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude,
losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming
administration of the opportunity to make the corresponding appointments in line with its new policies.
(Emphasis supplied)
Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No.
010988. However, we found that Quirogs appointment was made on June 1, 2001, or three days prior to the
issuance of CSC Resolution No. 010988. As such, we ruled that the retroactive application of the law was not
warranted.
In Sales v. Carreon, Jr.,[18] we had occasion to discuss the reasons behind the prohibition by the
Commission of mass appointments after the elections. Sales involved the issuance of 83 appointments made by
then Dapitan City Mayor Joseph Cedrick O. Ruiz in his last month of office (on June 1, 18, and 27, 2001), which
the newly elected Mayor, Rodolfo H. Carreon, subsequently revoked, on the ground that these violated CSC
Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing
appointments in the civil service during the election period. In Sales, we declared:

16
This case is a typical example of the practice of outgoing local chief executives to issue "midnight"
appointments, especially after their successors have been proclaimed. It does not only cause animosities
between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed
tend to devote their time and energy in defending their appointments instead of attending to their functions.[19]
It is not difficult to see the reasons behind the prohibition on appointments before and after the elections.
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the
appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To
this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related
issuances.[20] After the elections, appointments by defeated candidates are prohibited, except under the
circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming
officials, to allow the incoming administration a free hand in implementing its policies, and to ensure that
appointments and promotions are not used as a tool for political patronage or as a reward for services rendered
to the outgoing local officials.
Not all Mass Appointments are Prohibited
Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No.
010988 does not purport to nullify all mass appointments. However, it must be shown that the appointments
have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the
vacancy immediately, and that the appointments are not in bulk. In Nazareno v. Dumaguete,[21] we explained:
CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any
appointments immediately before and after elections. The same Resolution provides that the validity of an
appointment issued immediately before and after elections by an outgoing local chief executive is to be
determined on the basis of the nature, character, and merit of the individual appointment and the particular
circumstances surrounding the same.
Corollarily, we held in Sales,[22] that:
x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the
individual appointment and the circumstances surrounding the same. It is only when the appointments were
made en masse by the outgoing administration and shown to have been made through hurried maneuvers and
under circumstances departing from good faith, morality, and propriety that this Court has struck down
"midnight" appointments.
In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate
dates, but within a ten-day period, in the same month that he left office.[23] Further, the Commissions audit
found violations of CSC rules and regulations that justified the disapproval of the appointments. In this regard,
CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on Appointments and Other Personnel
Actions, provides:
Section 1 Appointments submitted to the CSC office concerned should meet the requirements listed
hereunder. Non-compliance with such requirements shall be grounds for disapproval of said appointments:
xxxx
(h)
Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and
evaluated by the PSB, if applicable. As proof thereof, a certification signed by the Chairman of the Board at the
back of the appointment or alternatively, a copy of the proceedings/ minutes of the Boards deliberation shall be
submitted together with the appointment. The issuance of the appointment shall not be earlier than the date of
the final screening/deliberation of the PSB.
Here, there was only one en banc meeting of the city PSB to consider the appointments, without any
evidence that there were any deliberations on the qualifications of the petitioners, or any indication that there
was an urgent need for the immediate issuance of such appointments. The absence of evidence showing careful
consideration of the merits of each appointment, and the timing and the number of appointments, militate
against petitioners cause. On the contrary, the prevailing circumstances in this case indicate that the
appointments were hurriedly issued by the outgoing administration.
The Accreditation of Dumaguete City did not remove the CSCs authority to review appointments

17
We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to
take final action on all its appointments did not deprive the Commission of its authority and duty to review
appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be subject to civil
service law, rules and regulations and that appointments in violation of pertinent rules shall immediately be
invalidated.
Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292
provides that notwithstanding the initial approval of an appointment, the same may be recalled for [v]iolation of
other existing Civil Service laws, rules and regulations. The CSC is empowered to take appropriate action on all
appointments and other personnel actions and that such power includes the authority to recall an appointment
initially approved in disregard of applicable provisions of Civil Service law and regulations.[24]
Petitioners have not engaged in forum shopping
The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause
of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.[25] Forumshopping has been defined as the act of a party against whom an adverse judgment has been rendered in one
forum, seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special
civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on
the supposition that one or the other court would make a favorable disposition.[26]
Although the factual antecedents of the cases brought before this Court are the same, they involve
different issues. The petition for Mandamus with Injunction and Damages, docketed as Civil Case No. 13013,
and raised before this Court as G.R. No. 177795, challenged respondents refusal to recognize petitioners
appointments and to pay petitioners salaries, salary adjustments, and other emoluments. The petition only
entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present
case docketed as G.R. No. 181559, on the other hand, involves the merits of petitioners appeal from the
invalidation and revocation of their appointments by the CSC-Field Office, which was affirmed by the CSCRegional Office, CSC en banc, and the Court of Appeals.
In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795,
which found petitioners not guilty of forum shopping, to wit:
True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are
not necessarily the same for this Court to adjudge that the filing of both by petitioners constitutes forum
shopping. In G.R. No. 181559, the Court will resolve whether or not the petitioners appointments are valid. [In
G.R. No. 177795], petitioners are claiming a right to the salaries, salary adjustments and other emoluments
during the pendency of the administrative cases, regardless of how the CSC decided the validity of their
appointments.
WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals Decision in CA-G.R. CEB-SP
No. 00665 dated August 28, 2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC
Resolution No. 050473 dated April 11, 2005, and its Resolution dated January 11, 2008 denying the Motion for
Reconsideration are AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES,
Petitioner,

- versus -

THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO,

Respondents.
G.R. No. 164185
Present:
QUISUMBING, J., Chairperson,
YNARES-SANTIAGO,*

18
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
July 23, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor
assails the May 20, 2004 Decision[1] of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465,
granting private respondent Alejandro A. Villapandos Demurrer to Evidence[2] and acquitting him of the crime
of unlawful appointment under Article 244[3] of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M.
Tiape (now deceased), a relative of Villapandos wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte.
Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal
Administrator of the Municipality of San Vicente, Palawan.[4] A Contract of Consultancy[5] dated February 8,
1999 was executed between the Municipality of San Vicente, Palawan and Tiape whereby the former employed
the services of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the
Municipal Mayor for a period of six months from January 1, 1999 to June 30, 1999 for a monthly salary of
P26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of
Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.[6] The complaint
was resolved against Villapando and Tiape and the following Information[7] dated March 19, 2002 charging the
two with violation of Article 244 of the Revised Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public
officer, being then the Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in
relation to and taking advantage of his official functions, conspiring and confederating with accused Orlando M.
Tiape, did then and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal
Administrator of San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape
lacks the qualification as he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte
during the May 1998 elections, hence is ineligible for appointment to a public office within one year (1) from the
date of the elections, to the damage and prejudice of the government and of public interest.
CONTRARY TO LAW.[8]
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the
Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was
dismissed after the prosecution proved his death which occurred on July 26, 2000.[9]
After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The
Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the court in
writing whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court.[10]
Villapando then filed a Manifestation of Intent to File Demurrer to Evidence,[11] and was given 15 days from
receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to Evidence
meritorious, as follows:
The Court found the Demurrer to Evidence impressed with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.Any public officer who shall knowingly nominate or appoint to any public
office any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1.
the offender was a public officer;
2.
accused nominated or appointed a person to a public office;
3.
such person did not have the legal qualifications [therefor;] and,
4.
the offender knew that his nominee or appointee did not have the legal qualifications at the time he made
the nomination or appointment.
Afore-cited elements are hereunder discussed.

19
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was
committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the
time of [his] designation as Municipal Administrator, was lacking in legal qualification. Stated differently, does
legal qualification contemplate the one (1) year prohibition on appointment as provided for in Sec. 6, Art. IX-B
of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost in any
election shall not, within one year after such election, be appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public office, there must be a law providing
for the qualifications of a person to be nominated or appointed therein. To illuminate further, Justice Rodolfo
Palattao succinctly discussed in his book that the qualification of a public officer to hold a particular position in
the government is provided for by law, which may refer to educational attainment, civil service eligibility or
experience:
As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a
public office. The person nominated or appointed is not qualified and his lack of qualification is known to the
party making the nomination or appointment. The qualification of a public officer to hold a particular position in
the government is provided by law. The purpose of the law is to ensure that the person appointed is competent
to perform the duties of the office, thereby promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational attainment, civil service eligibility or experience.
For instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates
a person for appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a
violation of the law under consideration.
In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law
that provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the
Local Government Code, to wit:
Section 480. Qualifications, Terms, Powers and Duties.(a) No person shall be appointed administrator unless
he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a
holder of a college degree preferably in public administration, law, or any other related course from a recognized
college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience
in management and administration work for at least five (5) years in the case of the provincial or city
administrator, and three (3) years in the case of the municipal administrator.
xxx
xxx
xxx.
It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapandos
appointee, Orlando Tiape, lacked any of the qualifications imposed by law on the position of Municipal
Administrator. Prosecutions argument rested on the assertion that since Tiape lost in the May 11, 1998 election,
he necessarily lacked the required legal qualifications.
It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A
person who possessed the required legal qualifications for a position may be temporarily disqualified for
appointment to a public position by reason of the one year prohibition imposed on losing candidates. Upon the
other hand, one may not be temporarily disqualified for appointment, but could not be appointed as he lacked
any or all of the required legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the Demurrer to Evidence filed by Mayor Villapando with merit, the same is hereby
GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.
SO ORDERED.[13]
Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor,
representing the People of the Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he
failed to do so and in a Resolution[14] dated June 7, 2006, this Court informed him that he is deemed to have
waived the filing of his comment and the case shall be resolved on the basis of the pleadings submitted by the
petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR
EXCESS OF JURISDICTION IN INTERPRETING THAT THE LEGAL DISQUALIFICATION IN ARTICLE 244 OF THE
REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON LOSING CANDIDATES AS
ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.
II.

20
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR
EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO
EVIDENCE.[15]
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to
lack or excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not
complement the provision on the one-year prohibition found in the 1987 Constitution and the Local Government
Code, particularly Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any
election shall, within one year after such election, be appointed to any office in the government or any
government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the Local
Government Code of 1991, for its part, states that except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one year after such election, be appointed to any office in the
government or any government-owned or controlled corporation or in any of their subsidiaries. Petitioner argues
that the court erred when it ruled that temporary prohibition is not synonymous with the absence of lack of legal
qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that
it may well be that one who possesses the required legal qualification for a position may be temporarily
disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing
candidates. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering
from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in
the law.
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in
Article 244 of the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX
of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates
within one year after such election to be appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public
office any person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine
not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No
elective or appointive local official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local
official shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1)
year after such election, be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to
any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.
Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal disqualification
lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification
cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under
Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the
constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter
shall not be disturbed in the absence of a grave abuse of discretion.
Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion
and hostility.[17]
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with
grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal
Code defies legal cogency. Legal disqualification cannot be read as excluding temporary disqualification in order
to exempt therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code of 1991.

21
We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not distinguish. There should be no
distinction in the application of a law where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to Evidence
yet accommodated Villapando by giving him five days within which to inform it in writing whether he will submit
his demurrer to evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in
legal contemplation and, thus, cannot be the source of an acquittal.[18]
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules
of statutory construction resulting in its decision granting Villapandos Demurrer to Evidence and acquitting the
latter, we can do no less but declare its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division,
in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby
declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
further proceedings.
SO ORDERED.
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL
P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this
original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent
useless and unnecessary expenditures of public funds by way of salaries and other operational expenses
attached to the office . . . ." 2 Paragraph (d) reads
(d) Chairman administrator The President shall appoint a professional manager as administrator
of the Subic Authority with a compensation to be determined by the Board subject to the approval
of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve
as the chief executive officer of the Subic Authority: Provided, however, That for the first year of
its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed
as the chairman and chief executive officer of the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and
members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that
the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and
statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official
shall be eligible for appointment or designation in any capacity to any public officer or position during his
tenure," 3 because the City Mayor of Olongapo City is an elective official and the subject posts are public offices;
(b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers
of the Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint", 4 since it was Congress through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or controlled corporations,
who appoints or hires any new employee, whether provisional, temporary or casual, or creates
and fills any new position, except upon prior authority of the Commission. The Commission shall
not grant the authority sought unless it is satisfied that the position to be filled is essential to the
proper functioning of the office or agency concerned, and that the position shall not be filled in a
manner that may influence the election. As an exception to the foregoing provisions, a new
employee may be appointed in case of urgent need: Provided, however, That notice of the
appointment shall be given to the Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of salary or remuneration or privilege to
any government official or employee, including those in government-owned or controlled
corporations . . . .

22
for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive
Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided,
however,That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo
shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional
proscription against appointment or designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration of several public positions in one person, so that a
public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public
services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the
head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No.
83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other
governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local
elective official will work for his appointment in an executive position in government, and thus neglect his
constituents . . . ." 7
In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since
this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination
to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the
expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official
to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious.
Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no
legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94
of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its
validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7,
Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or designation of
an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g.,
the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed
Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial
and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and
not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation,
thus
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the
prohibition is more strict with respect to elective officials, because in the case of appointive
officials, there may be a law that will allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there
will be certain situations where the law should allow them to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be
extended to elective officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence,
an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the
prohibition against the holding of any other office or employment by the President, Vice-President, Members of
the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the
Constitution, does not comprehend additional duties and functions required by the primary functions of the
officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any
additional compensation therefor.

23
This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA
posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of
appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts
appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to
make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead,
"ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first
par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts.
Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered
the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene
Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that
should foreclose the issue. It is a legislative choice." 15 The Senator took a view that the constitutional
proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA
posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without
passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be
appointive, thus nibbling in the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied
to uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the
same vein, the argument that if no elective official may be appointed or designated to another post then Sec. 8,
Art. IX-B, of the Constitution allowing him to receive double compensation 16 would be useless, is non
sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President
for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the
compensation attached to the cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par.
(d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer
of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a
person, by the person or persons having authority therefor, to fill an office or public function and discharge the
duties
of
the
same. 18 In
his
treatise,Philippine
Political
19
Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested
with the power, of an individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion.
According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence of his
appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act
involving the exercise of discretion."22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate
Court 23 we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities. It is a prerogative of the
appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion
of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the
same time limit the choice of the President to only one candidate. Once the power of appointment is conferred
on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications
prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion
of the appointing power to choose and constitutes an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first
year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to
only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question,
the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of
appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional
authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment
of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one
is certainly an encroachment on his prerogative.

24
Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his
incumbency, he may however resign first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. The deliberation in the Constitutional
Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with
TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his
position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may
leave the service, but if he is prohibited from being appointed within the term for which he was
elected, we may be depriving the government of the needed expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another
public office.
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to
the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or
lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o
Senator or Member of the House of Representatives may hold any other office or employment in the
Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is
significant in the sense that incumbent national legislators lose their elective posts only after they have been
appointed to another government office, while other incumbent elective officials must first resign their posts
before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to
the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect
is quite different where it is expressly provided by law that a person holding one office shall be ineligible to
another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second
office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE
721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn
147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR
941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be ineligible for
election or appointment to another office, either generally or of a certain kind, the prohibition has been held to
incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void
(Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the
Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that
contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as
SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though
not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve
the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a
known election or appointment, void because the officer was not eligible, or because there was a want of power
in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility,
want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or
pursuant to a public unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn.,
499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep.,
323)." 28
Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments
which may have been received by respondent Gordon pursuant to his appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated
. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of
this Authority that we are creating; (much) as I, myself, would like to because I know the capacity,
integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot do it because of the constitutional
prohibition which is very clear. It says: "No elective official shall be appointed or designated to
another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in
the ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e.,
"its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing

25
fancies, temporary passions or occasional infatuations of the people with ideas or personalities . . . . Such a
Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised
agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the
first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as
the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the
appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such
Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in
the exercise of his authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ.,
concur.
Padilla, J., is on leave.
[G.R. No. 139792. November 22, 2000]
ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now
known as METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION,
respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of
Appeals[1] in CA-G.R. SP No. 48301, which held that petitioners separation pay under Section 11 of R.A. No.
7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only,
excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has
already been given retirement gratuity and pension.
The undisputed facts are as follows:
On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed
office. After the military-backed EDSA revolt, petitioner was reappointed to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910,[2] as amended, and received
his retirement gratuity under the law for his entire years in the government service; and five years thereafter he
has been regularly receiving a monthly pension.
On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic
Operation Center of the MMA. His appointment was approved by the Civil Service Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan
Manila Development Authority (MMDA). Section 11 thereof reads:
Section 11. Transitory Provisions. To prevent disruption in the delivery of basic urban services pending the full
implementation of the MMDAs organizational structure and staffing pattern, all officials and employees of the
interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until
they shall have been given notice of change of duties and functions, and of being transferred to another office or
position.
...
The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall
be strictly enforced. The national government shall provide such amounts as may be necessary to pay the
benefits accruing to displaced employees at the rate of one and one-fourth (1) months salary for every year of
service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to
receive the benefits thereunder.
On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and
Regulations Implementing R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996,
which, inter alia, authorized the payment of separation benefits to the officials and employees of the former
MMA who would be separated as a result of the implementation of R.A. No. 7924.

26
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his voluntary
option to be separated from the service his services would automatically cease effective at the close of office
hours on 15 September 1996, and that he would be entitled to separation benefits equivalent to one and onefourth (1) monthly salary for every year of service as provided under Section 11 of the MMDA Law.
In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position
Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not
an additional or double compensation, all the years of his government service, including those years in the
Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924. The Assistant
Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of
petitioners separation pay must be in accordance with Civil Service Resolution No. 92-063, pertinent portions of
which read:
[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double
compensation in cases when officers and employees who were previously granted said benefits are rehired or
reemployed in another government Agency or Office. Thus, there is no need for separated employees to refund
the separation/retirement benefits they received when subsequently reemployed in another government agency
or office.
This being so, while an employee who was paid separation/retirement benefits is not required to refund the
same once reemployed in the government service, as aforestated, for reasons of equity however, it would be
proper and logical that said separation/retirement benefits should nevertheless be deducted from the
retirement/[separation] pay to be received by the employee concerned. Moreover, in this instance, the
employee concerned has the option either to refund his separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund
his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount
representing his previous separation/retirement pay received.
His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the
CSC.
On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and
dismissing petitioners appeal. Citing Chaves v. Mathay,[3] it held that petitioner cannot be paid retirement
benefits twice one under R.A. No. 910, as amended, and another under R.A. No. 7924 for the same services
he rendered as MeTC Judge. He can only exercise one of two options in the computation of his separation pay
under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after
he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years
and 2 months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the
defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum
dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an
equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire
government service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioners motion for reconsideration.
Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the
CSC was correct in dismissing petitioners appeal from the opinion of Director Acebedo. It ratiocinated as
follows:
There is no specific rule of law which applies to petitioners case. Nevertheless, the Court finds it equitable to
deny his claim for payment of separation pay at the rate of one and one-fourth (1) months salary for every
year of his service in government, that is, inclusive of the number of years he served as Judge of the
Metropolitan Trial Court of Manila [sic].
Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial
Court Judge. Equity dictates that he should no longer be allowed to receive further gratuity for said years of
service in the guise of separation pay.

27
Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of
his government service. The State has already shown its gratitude for his services when he was paid retirement
benefits under Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to an
employee who has given up the best years of his life to the service of his country (Govt. Service Insurance
System v. Civil Service Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services
as a director of the Metro Manila Authority (MMA), another chapter of petitioners government service which has
come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.
The Court, in limiting the computation of petitioners separation pay to the number of years of his service at the
MMA, merely is implementing the ruling in Chavez, Sr. vs. Mathay (37 SCRA 776), which ruling, if not actually
in point, is nevertheless applicable owing to its common-sense consideration. Said ruling reads:
The common-sense consideration stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is
being credited with his years of service under his first retirement in computing his gratuity under his second
retirement, it is but just that the retirement gratuity received by him under his first retirement should also be
charged to his account, manifestly govern the case at bar. It is but in accordance with the rule consistently
enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or
pension such as petitioners, would run roughshod over the well-settled rule that in the absence of an express
legal exception, pension and gratuity laws should be so construed as to preclude any person from receiving
double pension. (p. 780, underscoring supplied)
The case at bench is not, strictly speaking, about double pension. It is, however, about the interpretation of a
gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation pay to those government
employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to
preclude a government employee from receiving double gratuity for the same years of service.
We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for
the purpose of computing or determining petitioners separation pay under Section 11 of R.A. No. 7924, his
years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his
services in the MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of
one and one-fourth (1) months of salary for every year of service cannot by any stretch of logic or
imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to
include such service in the government outside the MMA. Since it allows the grant of separation pay to
employees who were to be displaced thereby the separation pay can be based only on the length of service in
the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such
as that of petitioner. The rule is settled that Congress may abolish public offices. Such a power is a consequent
prerogative of its power to create public offices.[4] However, the power to abolish is subject to the condition that
it be exercised in good faith.[5] The separation partook of the nature of a disturbance of compensation; hence,
the separation pay must relate only to the employment thus affected.
Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous
government service. If he were convinced that it does he could have instead applied for retirement benefits,
since by adding his years of service in the MMA to his previous years of service in the Government he could have
retired under the third paragraph of Section 11, which pertinently reads:
Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the
benefits thereunder.
Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement
gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension.
The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution,
which provides:
Pensions or gratuities shall not be considered as additional, double, or indirect compensation.
This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or
gratuity even if he accepts another government position to which another compensation is attached.[6]

28
Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as
amended, do not constitute double compensation. He could continue receiving the same even if after his
retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because
said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for
his services as Director III of the MMA.
However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No.
7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No.
910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services
as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the
same services.[7] More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the
Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:
No elective or appointive public officer or employee shall receive additional, double, or indirect compensation,
unless specifically authorized by law .
Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of
government service outside of the MMA.
WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for
want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. 169637

June 8, 2007

BENGUET
STATE
UNIVERSITY
represented
vs.
COMMISSION ON AUDIT, respondent.

by

its

President

ROGELIO

D.

COLTING, petitioner,

DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari filed by petitioner Benguet State University (BSU) seeking
to nullify Commission on Audit (COA) Decision No. 2003-112 1 and Decision No. 2005-0192 dated March 17, 2005.
COA Decision No. 2003-112 affirmed COA-CAR Decision No. 2000-3, disallowing the rice subsidy and health care
allowance to the employees of BSU, while COA Decision 2005-019 denied BSU's motion for reconsideration.
On July 6, 1997, Congress passed Republic Act No. 8292 entitled An Act Providing for the Uniform Composition
and Powers of the Governing Boards, the Manner of Appointment and Term of Office of the President of
Chartered State Universities and Colleges, and for Other Purposes, commonly known as the Higher Education
Modernization Act of 1997. Pursuant to Section 4 (d) of the said law, the Board of Regents of BSU passed and
approved Board Resolution No. 794 on October 31, 1997, granting rice subsidy and health care allowance to
BSUs employees. The sums were taken from the income derived from the operations of BSU and were given to
the employees at different periods in 1998.
On October 20, 1999, the grant of this rice subsidy and health care allowance in the total amount
of P4,350,000.00 was disallowed in audit under Notice of Disallowance No. 99-001-STF (98), stating that R.A. No.
8292 does not provide for the grant of said allowance to employees and officials of the university. 3
BSU requested the lifting of the disallowance with the COA Regional Office but it was denied in COA-CAR
Decision No. 2000-3 dated January 26, 2000.4 Citing Section 55 (2) of R.A. No. 8522 or the General Appropriation
Act of 1998, it held that a non-existent item, project, activity, purpose, or object of expenditure cannot be
funded by augmentation from savings or by the use of appropriations. It further held that the grant of said
allowances lacked statutory basis, transgressed the constitutional proscription on additional, double, or indirect
compensation and ran counter to the provisions of the Salary Standardization Law.

29
BSU thereafter filed a petition for review of Decision No. 2000-3 with the COA, which petition was denied in
Decision No. 2003-1125 dated July 17, 2003. The Commission ratiocinated:
Concededly, the provision in Section 8, Article IX-B, 1987 Constitution that, "No elective or appointive
public officers or employee shall receive additional, double or indirect compensation, unless specifically
authorized by law" allows the payment of additional compensation when specifically authorized by law. In
the instant case, BSU alleges that the grant of Rice Subsidy and Health Care allowance to its employees
in 1998 is authorized by law, specifically Section 4 of R.A. No. 8292, otherwise known as the Higher
Education Modernization Act of 1997. However, a closer perusal of the specific legal provision which
reads thus:
"Sec. 4. Powers and Duties of Governing Boards
xxx
"d) x x x
Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income
generated by the university or college, from tuition fee and other charges, as well as from the
operation of auxiliary services and land grants, shall be retained by the university or college, and
may be disbursed by the Board of Regents/Trustees for instruction, research, extension or other
programs/projects of the university or college x x x"
clearly negate such claim of authority. It is noted that the term "other programs/projects" refers to such
programs which the university may specifically undertake in pursuance of its primary objective which is
to attain quality higher education. The law could not have intended that the term "program/projects"
embrace all programs of BSU, for these benefits, though part of the overall operations, are not directly
related to BSU's academic program. Under the maxim of ejusdem generis, the mention of a general term
after the enumeration of specific matters should be held to mean that the general term should be of the
same genus as the specific matters enumerated and, therefore, the "other programs and projects" should
be held to be of the same nature as instruction, research and extension. The inclusion of an incentive
such as Rice Subsidy and Health Care Allowance to its teachers and non-teaching personnel is a patent or
blatant disregard of the statutory limitation on the powers of the governing Board of SUCs, as these
benefits are indubitably not one of instruction, research or extension.
Furthermore, employment in government service guarantees salaries and other compensation packages
and benefits pursuant to pertinent provisions of the Civil Service Law. Allowing other benefits to be
granted in excess of those authorized by law is illegal. As such, BSU's attempt to grant benefits over and
above those granted by the Civil Service Law cannot be countenanced. 6
A motion for reconsideration was filed but was denied in the assailed Decision No. 2005-019 dated March 17,
2005.7
Hence, this petition with BSU positing these issues:
A. Whether or not Petitioner is authorized to grant Health Care Allowance and Rice Subsidy to its
employees; and
B. Whether or not the recipients should reimburse the amounts received by them. 8
Before addressing the issues raised in the present petition, it bears noting that what was filed before this Court
is a petition captioned as a Petition for Review on Certiorari. We point out that a petition for review
on certiorari is not the proper mode by which the COAs decisions are reviewed by this Court. Under Rule 64,
Section 2 of the 1997 Rules of Civil Procedure, a judgment or final order of the COA may be brought by an
aggrieved party to this Court oncertiorari under Rule 65.9 Thus, it is only through a petition for certiorari under
Rule 65 that the COA's decisions may be reviewed and nullified by us on the ground of grave abuse of discretion
or lack or excess of jurisdiction.10
However, though captioned as a Petition for Review on Certiorari, we treat this petition as a petition
for certiorariunder Rule 65 for it alleges "grave abuse of discretion" and "reversible legal error." The averments

30
in the complaint, not the nomenclature given by the parties, determine the nature of the action. 11 Likewise, in
previous rulings, We have treated differently labeled actions as special civil actions for certiorari under Rule 65
for reasons such as justice, equity, and fair play. 12
BSU ascribes legal error and grave abuse of discretion to the COA in affirming the disallowance of the rice
subsidy and health care benefits. Relying on R.A. No. 8292, BSU maintains that it can grant said benefits to its
employees. It argues that the said law vests state universities and colleges with fiscal autonomy, and grants
them ample leeway in the appropriation and disbursement of their funds. BSU adds that the grant did not
contravene the constitutional prohibition on additional compensation because the allowances are granted as an
incentive in appreciation of services rendered and in recognition of the economic plight of the employees. Also,
the amounts used were taken from income generated by its operation and retained by the university which,
under R.A. No. 8292, may be disbursed by its Governing Board in a manner it may determine to carry out its
programs. Finally, it argues that the Salary Standardization Law does not expressly prohibit the benefits,
because the said allowances are in the nature of a financial assistance and not an additional income.
We affirm the assailed Decisions.
BSUs contention that it is authorized to grant allowances to its employees is based on Section 4 (d) of R.A. No.
8292. The provision reads:
SECTION 4. Powers and Duties of Governing Boards. The governing board shall have the following
specific powers and duties in addition to its general powers of administration and the exercise of all the
powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68,
otherwise known as the Corporation Code of the Philippines:
xxx

xxx

xxx

d) to fix the tuition fees and other necessary school charges, such as but not limited to matriculation
fees, graduation fees and laboratory fees, as their respective boards may deem proper to impose after
due consultations with the involved sectors.
Such fees and charges, including government subsidies and other income generated by the university or
college, shall constitute special trust funds and shall be deposited in any authorized government
depository bank, and all interests shall accrue therefrom shall part of the same fund for the use of the
university or college: Provided, That income derived from university hospitals shall be exclusively
earmarked for the operating expenses of the hospitals.
Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income
generated by the university or college from tuition fees and other charges, as well as from the operation
of auxiliary services and land grants, shall be retained by the university or college, and may be disbursed
by the Board of Regents/Trustees for instruction, research, extension, or other programs/projects of the
university or college: Provided, That all fiduciary fees shall be disbursed for the specific purposes for
which they are collected.
If, for reasons beyond its control, the university or college, shall not be able to pursue any project for
which funds have been appropriated and, allocated under its approved program of expenditures, the
Board of Regents/Trustees may authorize the use of said funds for any reasonable purpose which, in its
discretion, may be necessary and urgent for the attainment of the objectives and goals of the universities
or college;
xxx

xxx

xxx

Similarly, Commission on Higher Education (CHED) Memorandum No. 03-01, the Revised Implementing Rules
and Regulations (IRR) for R.A. No. 8292, provides:
RULE V
Powers and Duties of the Governing Boards

31
SECTION 18. Powers and Duties of Governing Boards (GBs). The GBs of chartered SUCs shall have the
following powers and duties, in addition to its general powers of administration and the exercise of all the
powers granted to a Board of Directors of a corporation under Section 36 of Batas Pambansa Blg. 68,
otherwise known as the "Corporation Code of the Philippines," thus:
xxx

xxx

xxx

(d) to fix the tuition fees and other necessary charges, such as, but not limited, to matriculation fees,
graduation fees and laboratory fees, as they may deem proper to impose, after due consultations with
the involved sectors.
Such fees and charges, including government subsidies and other income generated by the university or
college, shall constitute special trust funds and shall be deposited in any authorized government
depository bank, and all interest that shall accrue therefrom shall be part of the same fund for the use of
the university or college: Provided, that income derived from university or college hospitals shall be
exclusively earmarked for the operations of the hospitals.
Any income generated by the university or college from tuition fees and other charges, as well as from
the operation of auxiliary services and land grants, shall be retained by the university or college, and
may be disbursed by its GB for instruction, research, extension, or other programs/projects of the
university or college: Provided, That all fiduciary fees shall be disbursed for the specific purposes for
which they are collected.
If, for reasons beyond its control, the university or college shall not be able to pursue any project for
which funds have been appropriated and allocated under its approved program of expenditures, its GB
may authorize the use of said funds for any reasonable purpose which, in its discretion, may be
necessary and urgent for the attainment of the objectives and goals of the university or college;
xxx

xxx

xxx

What is clear from Section 4 (d) of R.A. No. 8292 cited by BSU as legal basis of its claim as well as from its
implementing rules is that income generated by the university may be disbursed by its Governing Board for
"instruction, research, extension, or other programs/projects of the university or colleges."
BSU theorizes that the phrase "other programs/projects of the university or college" in Section 4 (d) covers all
projects and programs of the university, including those designed to uplift the economic plight of the employees.
It is not limited to those programs which the university may specifically undertake in pursuance of its primary
objective to achieve quality education, contrary to the interpretation of the COA.
We disagree.
Under the principle of ejusdem generis, where a statute describes things of a particular class or kind
accompanied by words of a generic character, the generic word will usually be limited to things of a similar
nature with those particularly enumerated, unless there be something in the context of the statute which would
repel such inference.13The COA correctly ruled that the "other programs/projects" under R.A. No. 8292 and its
Implementing Rules should be of the same nature as instruction, research, and extension. In BSU's case, the
disbursements were for rice subsidy and health care allowances which are, in no way, intended for academic
programs similar to instruction, research, or extension. Section 4 (d) cannot, therefore, be relied upon by BSU as
the legal basis for the grant of the allowances.
Furthermore, a reading of the entire provision supports the COAs interpretation that the authority given to the
Governing Board of state universities and colleges is not plenary and absolute. It is clear in Section 4 that the
powers of the Governing Board are subject to limitations. This belies BSU's claim of plenary and absolute
authority.
Neither can BSU find solace in the academic freedom clause of the Constitution. Academic freedom as adverted
to in the Constitution and in
R.A. No. 8292 only encompasses the freedom of the institution of higher learning to determine for itself, on
academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to

32
study.14 The guaranteed academic freedom does not grant an institution of higher learning unbridled authority to
disburse its funds and grant additional benefits sans statutory basis. Unfortunately for BSU, it failed to present
any sound legal basis that would justify the grant of these additional benefits to its employees.
Section 8, Article IX-B of the 1987 Constitution, is clear that:
No elective or appointive public officer or employee shall receive additional, double or indirect
compensation, unless specifically authorized by law, nor accept without the consent of Congress, any
present, emolument, office or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double or indirect compensation.
Besides, Section 12 of R.A. No. 6758 or the Salary Standardization Law already provides for consolidation of
allowances in the standardized salary rates, thus:
SEC. 12. Consolidation of All Allowances and Compensation. All allowances, except for representation
and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers
and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service
personnel stationed abroad; and such other additional compensation not otherwise specified herein as
may be determined by the DBM, shall be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in kind, being received by
incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be
authorized.
The benefits excluded from the standardized salary rates are the "allowances" which are usually granted to
officials and employees of the government to defray or reimburse the expenses incurred in the performance of
their official functions.15 Clearly, the rice subsidy and health care allowance granted by BSU were not among the
allowances listed in Section 12 which State workers can continue to receive under R.A. No. 6758 over and above
their standardized salary rates. Hence, no abuse of discretion was committed by the COA in disallowing the
disbursement of funds.
As regards the refund of the disallowed benefits, this Court holds that the employees need not refund the
benefits they received based on our ruling in Philippine Ports Authority v. Commission on Audit. 16 In that case,
the COA disallowed the payment of hazard duty pay and birthday cash gifts to its employees. This Court
sustained the disallowance because the grant was without legal basis. However, this Court ruled against the
refund holding that:
x x x Petitioners received the hazard duty pay and birthday cash gift in good faith since the benefits were
authorized by PPA Special Order No. 407-97 issued pursuant to PPA Memorandum Circular No. 34-95
implementing DBM National Compensation Circular No. 76, series of 1995, and PPA Memorandum Circular
No. 22-97, respectively. Petitioners at the time had no knowledge that the payment of said benefits
lacked legal basis. Being in good faith, petitioners need not refund the benefits they received. 17
The ruling in Philippine Ports Authority applies to this case. The BSU employees received the rice subsidy and
health care allowances in good faith since the benefits were authorized by Board Resolution No. 794, series of
1997. They had no knowledge that the grant of said benefits lacked statutory basis. Therefore, a refund is
unnecessary.
WHEREFORE, the instant petition is DENIED. Commission on Audit Decisions No. 2003-112 and No. 2005-019
areAFFIRMED but with MODIFICATION that BSU employees need not refund the rice subsidy and health care
allowance received per Board Resolution No. 794, series of 1997.
No pronouncement as to costs.
SO ORDERED.
EFREN M. HERRERA and ESTHER C.
GALVEZ, for and on their behalf and
on behalf of OTHER SEPARATED,
UNREHIRED and RETIRED

33
EMPLOYEES OF THE NATIONAL
POWER CORPORATION,
Petitioners,
- versus NATIONAL POWER CORPORATION,
THE DEPARTMENT OF BUDGET
AND MANAGEMENT and THE
OFFICE OF THE SOLICITOR
GENERAL,
Respondents.
G.R. No. 166570

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

Promulgated
December 18, 2009
x-------------------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
The question at the heart of this case is whether petitioners, former employees of the National Power
Corporation (NPC) who were separated from service due to the governments initiative of restructuring the
electric power industry, are entitled to their retirement benefits in addition to the separation pay granted by law.
Absent explicit statutory authority, we cannot provide our imprimatur to the grant of separation pay and
retirement benefits from one single act of involuntary separation from the service, lest there be duplication of
purpose and depletion of government resources. Within the context of government reorganization, separation
pay and retirement benefits arising from the same cause, are in consideration of the same services and granted
for the same purpose. Whether denominated as separation pay or retirement benefits, these financial benefits
reward government service and provide monetary assistance to employees involuntarily separated due to bona
fide reorganization.
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court on a pure question of law
against the Decision[1] dated December 23, 2004 rendered by the Regional Trial Court (RTC), Branch 101,
Quezon City in SCA No. Q-03-50681 (for Declaratory Relief) entitled National Power Corporation v. Napocor
Employees and Workers Union (NEWU), NAPOCOR Employees Consolidated Union (NECU), NPC Executive
Officers Association, Inc. (NPC-EXA), Esther Galvez and Efren Herrera, for and on their behalf and in behalf of
other separated, unrehired, and retired employees of the National Power Corporation, the Department of Budget
and Management (DBM), the Office of the Solicitor General (OSG), the Civil Service Commission (CSC) and the
Commission on Audit (COA). Said Decision ruled that the petitioners are not entitled to receive retirement
benefits under Commonwealth Act No. 186 (CA No. 186),[2] as amended, over and above the separation
benefits they received under Republic Act (RA) No. 9136,[3] otherwise known as the Electric Power Industry
Reform Act of 2001 (EPIRA).
Legal and factual background

34
RA No. 9136 was enacted on June 8, 2001 to provide a framework for the restructuring of the electric
power industry, including the privatization of NPCs assets and liabilities.[4] One necessary consequence of the
reorganization was the displacement of employees from the Department of Energy, the Energy Regulatory
Board, the National Electrification Administration and the NPC. To soften the blow from the severance of
employment, Congress provided in Section 63 of the EPIRA, for a separation package superior than those
provided under existing laws, as follows:
SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government
employees displaced or separated from the service as a result of the restructuring of the [electric power]
industry and privatization of NPC assets pursuant to this Act, shall be entitled to either a separation pay and
other benefits in accordance with existing laws, rules or regulations or be entitled to avail of the privileges
provided under a separation plan which shall be one and one-half month salary for every year of service in the
government: Provided, however, That those who avail of such privilege shall start their government service
anew if absorbed by any government-owned successor company. In no case shall there be any diminution of
benefits under the separation plan until the full implementation of the restructuring and privatization. x x x
(Emphasis supplied)
The implementing rules of the EPIRA, approved by the Joint Congressional Power Commission on
February 27, 2002,[5] further expounded on the separation benefits, viz:
RULE 33.

Separation Benefits

Section 1. General Statement on Coverage.

This Rule shall apply to all employees in the National Government service as of June 26, 2001
regardless of position, designation or status, who are displaced or separated from the service as a result of the
restructuring of the electric [power] industry and privatization of NPC assets: Provided, however, That the
coverage for casual or contractual employees shall be limited to those whose appointments were approved or
attested [to] by the Civil Service Commission (CSC).
Section 2. Scope of Application.
This Rule shall apply to affected personnel of DOE, ERB, NEA and NPC.
Section 3. Separation and Other Benefits.
(a)
The separation benefit shall consist of either a separation pay and other benefits granted in accordance
with existing laws, rules and regulations or a separation plan equivalent to one and one half (1-12) months
salary for every year of service in the government, whichever is higher; Provided, That the separated or
displaced employee has rendered at least one (1) year of service at the time of effectivity of the Act.
xxxx
(e)
For this purpose, Salary, as a rule, refers to the basic pay including the thirteenth (13th) month pay
received by an employee pursuant to his appointment, excluding per diems, bonuses, overtime pay, honoraria,
allowances and any other emoluments received in addition to the basic pay under existing laws.
(f)
Likewise, Separation or Displacement refers to the severance of employment of any official or
employee, who is neither qualified under existing laws, rules and regulations nor has opted to retire under
existing laws, as a result of the Restructuring of the electric power industry or Privatization of NPC assets
pursuant to the Act. (Emphasis supplied)
On February 28, 2003, all NPC employees, including the petitioners, were separated from the service. As
a result, all the employees who held permanent positions at the NPC as of June 26, 2001 opted for and were
paid the corresponding separation pay equivalent to one and a half months salary per year of service.
Nonetheless, in addition to the separation package mandated by the EPIRA, a number of NPC employees also
claimed retirement benefits under CA No. 186,[6] as amended by RA No. 660[7] and RA No. 1616.[8] Under
these laws, government employees who have rendered at least 20 years of service are entitled to a gratuity
equivalent to one months salary for every year of service for the first 20 years, one and a half months salary
for every year of service over 20 but below 30 years, and two months salary for every year of service in excess
of 30 years.[9]

35
The NPC, on the other hand, took the position that the grant of retirement benefits to displaced
employees in addition to separation pay was inconsistent with the constitutional proscription on the grant of a
double gratuity. Unable to amicably resolve this matter with its former employees, the NPC filed on September
18, 2003, a Petition for Declaratory Relief[10] against several parties,[11] including the petitioners, before the
RTC of Quezon City, to obtain confirmation that RA No. 9136 did not specifically authorize NPC to grant
retirement benefits in addition to separation pay.[12] The case was docketed as SCA No. Q-03-50681 and
raffled to Branch 101 of said court.
After submission of the respondents respective Answers and Comments,[13] the parties agreed that the
court a quo would resolve the case based on the arguments raised in their memoranda[14] since only a
question of law was involved.[15] In due course, the court a quo rendered the assailed Decision, finding that
employees who received the separation benefit under RA No. 9136 are no longer entitled to retirement benefits:
The aforementioned law speaks of two (2) options for the employee to choose from, that is: (1) to
receive separation pay and other benefits in accordance with existing laws, rules, and regulations or (2) to avail
of the privileges provided under a separation plan (under R.A. 9136), which shall be one and one half months
salary for every year of service in the government.
Under Section 3(f) of Rule 33 of the Implementing Rules and Regulations of R.A. 9136, separation or
displacement refers to the severance of employment of any official or employee, who is neither qualified under
existing laws, rules, and regulations nor has opted to retire under existing laws as a result of the Restructuring
of the electric power industry or Privatization of NPC assets pursuant to the act. Thus, it is clear that the receipt
of benefits under the EPIRA law, by employees who opted to retire under such law bars the receipt of retirement
benefits under R.A. 1616.
Moreover, Section 8 of Article IX-B of the 1987 Constitution prohibits the grant of both separation pay
and retirement benefits. x x x
xxxx
In said constitutional provision, it is x x x clear that additional or indirect compensation is barred by
law and only [allowed] when so specifically authorized by law. Furthermore, on the Private Respondents'
contention that the second paragraph should be applied in their [case], the same will not hold water. This is so
because retirement benefits [are] not synonymous to pension or gratuities as contemplated by law.
R.A. 9136 did not clearly and unequivocally authorize the payment of additional benefits to Private
Respondents as the benefits referred to in such law should not be interpreted to include retirement benefits in
addition to their separation pay. Separation from service due to [the] restructuring of the [electric] power
industry should not be interpreted to mean retirement as both are different in every respect. The law
specifically defines the meaning of separation by virtue of the restructuring. x x x
xxxx
Thus, the Respondent-Employees are not entitled to receive retirement benefits under Republic Act
No. 1616 over and above the separation benefits they received under Republic Act No. 9136.[16]
Petitioners sought recourse from the assailed Decision directly before this court on a pure question of
law. The Department of Budget and Management (DBM) submitted its Comment on June 30, 2005,[17] while the
NPC, through the Office of the Solicitor General, filed its Comment on August 23, 2005.[18] Petitioners then
filed their Consolidated Reply by registered mail on November 18, 2005.[19] After the parties filed their
respective memoranda,[20] the case was
submitted for decision.
Petitioners arguments
Before us, petitioners argue that:
1)
The EPIRA does not bar the application of CA No. 186, as amended. Petitioners are therefore entitled to
their retirement pay in addition to separation pay.
2)

Petitioners have vested rights over their retirement benefits.

36
3)
The payment of both retirement pay and separation pay does not constitute double compensation, as the
Constitution provides that pensions or gratuities shall not be considered as additional, double or indirect
compensation.
Respondents arguments
Respondents NPC and the DBM, on the other hand, maintain that:
1)
Section 63 of RA No. 9136 and Section 3, Rule 33 of its Implementing Rules and Regulations do not
authorize the grant of retirement benefits in addition to the separation pay already received. Rather, Section 63
requires separated employees to choose between a separation plan under existing laws or the separation
package under the EPIRA.
2)
The grant of both separation pay and retirement benefit amounts to double gratuity in direct
contravention of the Constitution.
3)

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

Issue
The sole issue in this case is whether or not NPC employees who were separated from the service because of
the reorganization of the electric power industry and who received their separation pay under RA No. 9136 are
still entitled to receive retirement benefits under CA No. 186, as amended.
Our Ruling
We deny the petition and affirm the court a quos Decision dated December 23, 2004 in SCA No. Q-03-50681.
Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits
violates the constitutional proscription on additional compensation.
Section 8 of Article IX(B) of the Constitution provides that [n]o elective or appointive public officer or employee
shall receive additional, double, or indirect compensation, unless specifically authorized by law. In prior
decisions, we have ruled that there must be a clear and unequivocal statutory provision to justify the grant of
both separation pay and retirement benefits to an employee.[21] Here, absent an express provision of law, the
grant of both separation and retirement benefits would amount to double compensation from one single act of
separation from employment.
Petitioners claim that Section 9 of RA No. 6656[22] amounts to sufficient statutory basis for the grant of both
retirement benefits and separation pay. Section 9 provides:
x x x Unless also separated for cause, all officers and employees, who have been separated pursuant
to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other
benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from
the date of the receipt of the resolution of their appeals as the case may be. Provided, That application for
clearance has been filed and no action thereon has been made by the corresponding department or agency.
Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one
(1) month salary for every year of service. Such separation pay and retirement benefits shall have priority of
payment out of the savings of the department or agency concerned. (Emphasis supplied)
Unfortunately for the petitioners, their interpretation has little legal precedent. The CSC has previously ruled
that employees similarly situated to petitioners herein were not entitled to both separation pay and retirement
benefits; instead, the concerned employee must either avail of the separation benefit or opt to retire if qualified
under existing laws. In CSC Resolution No. 021112,[23] the CSC interpreted the phrase separation pay and
retirement in RA No. 6656 as follows:
x x x While the aforequoted provision of law used the conjunctive "and" between the words
"separation pay" and "retirement", this does not mean that both benefits shall be given to an affected
employee. This interpretation is supported by the phrase "if entitled thereto" found before the phrase "be paid

37
the appropriate separation pay and retirement and other benefits under existing laws". Thus, payment of both
separation and retirement benefits is not absolute.
Also, in CSC Resolution No. 00-1957,[24] the CSC declared:
The aforequoted provision of law says: separation pay and retirement and other benefits under
existing laws. Be it noted that the conjunctive and is used between separation pay and retirement, which in
its elementary sense would mean that they are to be taken jointly. (Ruperto G. Martin, Statutory Construction,
sixth edition, p. 88) Obviously, therefore, separation pay and retirement refer to only one benefit, of which an
employee affected by the reorganization, if entitled thereto, must be paid plus other benefits under existing
laws, i.e. terminal leave pay, etc.

Further, in Cajiuat v. Mathay,[25] we found that in the absence of express provisions to the contrary, gratuity
laws should be construed against the grant of double compensation. Cajiuat involved employees of the Rice and
Corn Administration who exercised their option to retire under CA No. 186 and received the appropriate
retirement benefits. Subsequently, the Rice and Corn Administration was abolished by Presidential Decree No.
4.[26] Said Decree also provided for the payment of a gratuity in Section 26, paragraph 3:
Permanent officials and employees of the Rice and Corn Administration who cannot be absorbed by the
Administration, or who cannot transfer or to be transferred to other agencies, or who prefer to retire, if
qualified for retirement, or to be laid off, shall be given gratuity equivalent to one month salary for every year
of service but in no case more than twenty-four months salary, in addition to all other benefits to which they are
entitled under existing laws and regulations. x x x
On the basis of this provision, the retired employees of the Rice and Corn Administration claimed that they were
entitled to the separation gratuity, over and above the retirement benefits already received. We disagreed and
held that:
x x x [t]here must be a provision, clear and unequivocal, to justify a double pension. The general language
employed in paragraph 3, Section 26 of Presidential Decree No. 4 fails to meet that test. All that it states is that
permanent employees of the Rice and Corn Administration who are retirable are entitled to gratuity equivalent
to one month salary for every year of service but in no case more than twenty four months salary in addition to
other benefits to which they are entitled under existing laws and regulations. To grant double gratuity is
unwarranted. No reliance can be placed [on] the use of the term other benefits found in the paragraph relied
upon. As clearly stated in the memorandum of the Solicitor General, they refer to those receivable by a retiree
under the general retirement laws, like the refund of contributions to the retirement fund and the money value
of the accumulated vacation and sick leaves of said official employee. The clause in addition to all other
benefits to which they are entitled under existing laws and regulations was inserted to insure the payment to
the retiree of the refund of the contributions to the retirement fund and the money value of the accumulated
vacation and sick leaves of said official or employee.[27]
Nothing in the EPIRA justifies the grant of both the separation package and retirement benefits.
The EPIRA, a legislative enactment dealing specifically with the privatization of the electric power industry,
provides:
SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government
employees displaced or separated from the service as a result of the restructuring of the [electric power]
industry and privatization of NPC assets pursuant to this Act, shall be entitled to either a separation pay and
other benefits in accordance with existing laws, rules or regulations or be entitled to avail of the privileges
provided under a separation plan which shall be one and one-half month[s] salary for every year of service in
the government: Provided, however, That those who avail of such privilege shall start their government service
anew if absorbed by any government-owned successor company. In no case shall there be any diminution of
benefits under the separation plan until the full implementation of the restructuring and privatization. x x x
(Emphasis supplied)
A careful reading of Section 63 of the EPIRA affirms that said law did not authorize the grant of both separation
pay and retirement benefits. Indeed, the option granted was either to a separation pay and other benefits in
accordance with existing laws, rules and regulations or to a separation plan which shall be one and one-half
months salary for every year of service in the government. The options were alternative, not cumulative.
Having chosen the separation plan, they cannot now claim additional retirement benefits under CA No. 186.

38
This position finds further support in Section 3(f), Rule 33 of RA No. 9136s Implementing Rules and Regulations,
which provides:
(f)
likewise, separation or displacement refers to the severance of employment of any official or
employee, who is neither qualified under existing laws, rules and regulations nor has opted to retire under
existing laws, as a result of the restructuring of the electric power industry or privatization of NPC assets
pursuant to the act.
As worded, Rule 33, Section 3(f) of the Implementing Rules and Regulations of RA No. 9136 precludes the
receipt of both separation and retirement benefits. A separated or displaced employee, as defined by the
implementing rules, does not include one who is qualified or has opted to retire under existing laws.
Consequently, a separated employee must choose between retirement under applicable laws or separation pay
under the EPIRA.
Within the context of reorganization, petitioners cannot claim a vested right over their retirement benefits.
Petitioners claim that having religiously paid their premiums, they have vested rights to their retirement
gratuities which may not be revoked or impaired. However, petitioners fail to consider that under the retirement
laws that they themselves invoke, separation from the service, whether voluntary or involuntary, is a distinct
compensable event from retirement.[28] Nothing in said laws permits an employee to claim both separation
pay and retirement benefits in the event of separation from the service due to reorganization.
Thus, absent an express provision of law to the contrary, separation due to reorganization gives rise to
two possible scenarios: first, when the separated employee is not yet entitled to retirement benefits, second,
when the employee is qualified to retire. In the first case, the employees separation pay shall be computed
based on the period of service rendered in the government prior to the reorganization. In the second case,
where an employee is qualified to retire, he or she may opt to claim separation or retirement benefits.

Contradistinction with Larao v. Commission on Audit

We are, of course, aware that in Larao v. Commission on Audit[29] we held that employees, who were
separated from the service because of the reorganization of the Metropolitan Waterworks and Sewerage System
(MWSS) and Local Waterworks and Utilities Administration (LWUA) pursuant to RA No. 8041, were entitled to
both a separation package and retirement benefits.[30]
In Larao, however, the Early Retirement Incentive Plan submitted to and approved by then President Fidel V.
Ramos explicitly provided for a separation package that would be given over and above the existing retirement
benefits. Therein lies the fundamental difference. Hence, unlike in this case, there was specific authority for the
grant of both separation pay and retirement benefits.
WHEREFORE, the petition is DENIED. The Decision dated December 23, 2004 of the Regional Trial Court of
Quezon City, Branch 101 in SCA No. Q-03-50681 holding that petitioners are not entitled to receive retirement
benefits under Commonwealth Act No. 186, as amended is AFFIRMED with MODIFICATION that petitioners are
entitled to a refund of their contributions to the retirement fund, and the monetary value of any accumulated
vacation and sick leaves.
[G.R. No. L-26608. March 31, 1971.]
PEDRO G. PERALTA, Petitioner, v. AUDITOR GENERAL ISMAEL MATHAY, Respondent.
Pedro G. Peralta in his own behalf.
Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Bernardo P.
Pardo for Respondent.
SYLLABUS

39
1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; PROHIBITION AGAINST DOUBLE COMPENSATION. It
is expressly provided in the Constitution: "No officer or employee of the government shall receive additional or
double compensation unless specifically authorized by law." This is to manifest a commitment to the
fundamental principle that a public office is a public trust. It is expected of a government official or employee
that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of
course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the
overriding consideration. The intrusion of the thought of private gain should be unwelcome. The temptation to
further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. That at
least is the ideal. There is then to be an awareness on the part of an officer or employee of the government that
he is to receive only such compensation as may be fixed by law. With such a realization, he is expected not to
avail himself of devious or circuitous means to increase the remuneration attached to his position. It is an
entirely different matter if the legislative body would itself determine for reasons satisfactory to it that he should
receive something more. If it were to be thus though, there must be a law to that effect. So the Constitution
decrees.
2. ID.; ID.; ID.; APPLICATION; GSIS OFFICERS. As is expressly declared in the Constitution, the Civil Service is
to embrace "all branches and subdivisions of the Government * * *." Conformably to the above, the Philippine
Civil Service, by law, includes all branches, subdivisions and instrumentalities of the Government, including
government-owned or controlled corporations . . . ." Petitioner has not disputed, nor can he dispute that as a
trustee, he was an officer of the government, the GSIS having been established in order "to promote the
efficiency and welfare of the employees of the Government of the Philippines and to replace the [then] pension
systems established in [previous acts]. As such officer, petitioner cannot receive additional or double
compensation unless specifically authorized by law.
3. ID.; ID.; ID.; PER DIEM; INCLUDED. Under the GSIS Act. petitioner is entitled as trustee "to a per diem of
P25.00 for each day of actual attendance in session." As in the case of government controlled corporations, the
term per diems" was used in the sense the compensation or remuneration attached to the office of Trustee.
Such is not the meaning usually attached to it. So it was noted in Lexal Laboratories v. National Chemical
Industries Workers Union, (L-24632, October 26, 1968, 25 SCRA 668). A "per diem" is commonly identified with
the daily allowance "for each day he (an officer or employee) was away from his home base." Its usual
signification is thus that a reimbursement for expenses incurred in the performance of ones duties. If employ in
a statute, as in this case, in the concept of remuneration, however, there must be, to justify an additional
compensation, a specific law that so provides. Otherwise, fidelity to the constitutional command is lacking.
4. ID.; ID.; ID.; COST OF LIVING ALLOWANCE, INCLUDED. A similar approach is called for in determining the
nature of a cost of living allowance. If it could rightfully be considered as in the nature of a reimbursement
rather than additional emoluments or perquisites, then the ruling of respondent Auditor General cannot find
support in the Constitution. What was said in an American State decision has relevance. It was therein
categorically stated "that it is universally held that an allowance for expenses incident to the discharge of the
duties of office is not an increase of salary, a perquisite, nor an emolument of office." To the same effect is this
excerpt appearing later in the opinion: "A careful and, we believe, exhaustive examination of the decisions fails
to disclose a single case in which it has ever been held that a legislative act, providing for an allowance, for
expenses incurred in the discharge of official duties, to a public officer, whose salary or compensation was fixed
at a stated sum, was in violation of provisions such as are found in many state Constitutions, forbidding an
increase of salary during official terms, or forbidding the granting of fees, perquisites, or emoluments to
such officer. Legislative acts which directly in terms, or as construed, attempted to increase such salaries, have
been held invalid. But no decision has been found or, as we believe, can be found, which holds a legislative act
to be unconstitutional which merely relieves an officer, who received a fixed salary or compensation, from
expending such salary for expenses incident to the performance of his official duties." It is worth noting that
there are specific provisions in the applicable statutes allowing trustees or directors, traveling expenses which
may be collected by the board of directors of the Philippines Virginia Tobacco Administration; traveling and
subsistence expenses by the members and board of directors of the Central Luzon-Cagayan Valley Authority;
and traveling and other necessary expenses by the members of the Philippine Medical Care Commission. Such
provisions are prompted by what may appear to be an excess of caution, for the accepted doctrine is that an
allowance to take care of expenses incurred by an official to enable him to fulfill his task cannot be looked upon
as an additional compensation. Such a principle does not come to the aid of petitioner though. He was unable to
show that the cost of living allowance received by him was in the nature of a reimbursement. It did amount then
to an additional compensation.
5. ID.; ID.; ID.; BONUS, INCLUDED. It is quite obvious that by its very nature, a bonus partakes of an additional
remuneration or compensation. The very characterization of what was received by petitioner as bonuses being
intended by way of an incentive to spur him possibly to more diligent efforts and to add to the feeling of well-

40
being traditionally associated with the Christmas season would remove any doubt that the Auditor General had
no choice except to deduct from petitioners gratuity such items.
DECISION
FERNANDO, J.:
There is need in this appeal from a decision of respondent Auditor General Ismael Mathay for an inquiry into the
meaning and significance of the constitutional inhibition against an officer or employee of the government
receiving additional or double compensation unless specifically authorized by law, 1 the decisive legal question
being whether or not the cost of living allowance as well as incentive and Christmas bonuses paid to petitioner
Pedro G. Peralta, a Trustee of the Government Service Insurance System, hereinafter called the GSIS, did fall
within such a ban. The answer given by respondent Auditor General was in the affirmative. After a careful study
of the matter, this Court arrives at a similar conclusion. Hence this appeal cannot prosper.
The facts are undisputed. As set forth in the brief of petitioner, the GSIS, on May 17, 1966, in a resolution duly
passed, granted him an optional retirement gratuity of P40,336.07. Of that amount, he was not able to collect
the sum of P7,032.26, covering P3,982.26 as cost of living allowance, P1,275.00 as incentive bonus, and
P1,775.00 as Christmas bonus. Such items were not passed in audit. the view of respondent Auditor General
being that they should be deducted from his gratuity, although during petitioners incumbency as Trustee, no
question was raised when he was paid such allowance and bonuses. Respondent Auditor General justified his
action on the ground that they "partake of the nature of additional compensation," a trustees remuneration
being fixed by law in the form of a per diem of P25.00 for every board meeting of the GSIS attended.
Respondent so ruled on June 28, 1966, and maintained such a stand on September 1, 1966 when he denied a
motion for reconsideration. Hence this appeal for review filed on September 29, 1966.
The ruling of respondent Auditor General, being in accordance with what the Constitution requires, must be
upheld.
1. It is expressly provided in the Constitution: "No officer or employee of the government shall receive additional
or double compensation unless specifically authorized by law." 2 This is to manifest a commitment to the
fundamental principle that a public office is a public trust. It is expected of a government official or employee
that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of
course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the
overriding consideration. The intrusion of the thought of private gain should be unwelcome. The temptation to
further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. That at
least is the ideal. There is then to be an awareness on the part of an officer or employee of the government that
he is to receive only such compensation as may be fixed by law. With such a realization, he is expected not to
avail himself of devious or circuitous means to increase the remuneration attached to his position. It is an
entirely different matter if the legislative body would itself determine for reasons satisfactory to it that he should
receive something more. If it were to be thus though, there must be a law to that effect. So the Constitution
decrees.
As is expressly declared in the Constitution, the Civil Service is to embrace "all branches and subdivisions of the
Government . . .." 3 Conformably to the above, the Philippine Civil Service, by law, includes "all branches,
subdivisions and instrumentalities of the Government, including government-owned or controlled corporations . .
.." 4 Petitioner has not disputed, nor can he dispute that as a trustee, he was an officer of the government, the
GSIS having been established in order "to promote the efficiency and welfare of the employees of the
Government of the Philippines and to replace the [then] pension systems established in [previous acts.]" 5 As
such officer, petitioner cannot receive additional or double compensation unless specifically authorized by law.
Under the GSIS Act, he is entitled as trustee "to a per diem of P25.00 for each day of actual attendance in
session." 6 As in the case of government-controlled corporations, the term "per diems" was used in the sense of
the compensation or remuneration attached to the office of Trustee 7 Such is not the meaning usually attached
to it. So it was noted in Lexal Laboratories v. National Chemical Industries Workers Union. 8 A "per diem" is
commonly identified with the daily allowance "for each day he (an officer or employee) was away from his home
base." Its usual signification is thus that of a reimbursement for expenses incurred in the performance of ones
duties. If employed in a statute, as in this case, in the concept of remuneration, however, there must be, to
justify an additional compensation, a specific law that so provides. Otherwise, fidelity to the constitutional
command is lacking.

41
A similar approach is called for in determining the nature of a cost of living allowance. If it could rightfully be
considered as in the nature of a reimbursement rather than additional emoluments or perquisites, then the
ruling of respondent Auditor General cannot find support in the Constitution. What was said in an American
State decision 9 has relevance. It was therein categorically stated "that it is universally held that an allowance
for expenses incident to the discharge of the duties of office is not an increase of salary, a perquisite, nor an
emolument of office." 10 To the same effect is this excerpt appearing later in the opinion: "A careful and, we
believe, exhaustive examination of the decisions fails to disclose a single case in which it has ever been held
that a legislative act, providing for an allowance, for expenses incurred in the discharge of official duties, to a
public officer, whose salary or compensation was fixed at a stated sum, was in violation of provisions such as are
found in many state Constitutions, forbidding an increase of salary official terms, or forbidding the granting of
`fees, `perquisites, or `emoluments to such officer. Legislative acts which directly in terms, or as construed,
attempted to increase such salaries, have been held invalid. But no decision has been found or, as we believe,
can be found, which holds a legislative act to be unconstitutional which merely relieves an officer, who received
a fixed salary or compensation, from expending such salary for expenses incident to the performance of his
official duties." 11 It is worth noting that there are specific provisions in the applicable statutes allowing trustees
or directors, traveling expenses which may be collected by the board of directors of the Philippine Virginia
Tobacco Administration; 12 traveling and subsistence expenses by the members and board of directors of the
Central Luzon-Cagayan Valley Authority; 13 and traveling and other necessary expenses by the members of the
Philippine Medical Care Commission. 14 Such provisions are prompted by what may appear to be an excess of
caution, for the accepted doctrine is that an allowance to take care of expenses incurred by an official to enable
him to fulfill his task cannot be looked upon as an additional compensation. Such a principle does not come to
the aid of petitioner though. He was unable to show that the cost of living allowance received by him was in the
nature of a reimbursement. It did amount then to an additional compensation.
So it is in the case of the bonuses received by him. It is quite obvious that by its very nature, a bonus partakes
of an additional remuneration or compensation. 15 The very characterization of what was received by petitioner
as bonuses being intended by way of an incentive to spur him possibly to more diligent efforts and to add to the
feeling of well-being traditionally associated with the Christmas season would remove any doubt that the
Auditor General had no choice except to deduct from petitioners gratuity such items.
2. It is apparent that respondent Auditor General accorded respect and deference to a constitutional command.
To impute legal error to his actuation is to be oblivious of the fundamental postulate that the Constitution is
supreme. Obedience is mandatory. It cannot be disregarded. Every public official is sworn to uphold it. There can
be no justification for any other course of action. To condone whether by intent or inadvertence any deviation
from what it prescribes is to display less than full fealty to the cardinal precept of our polity. A mistaken
sympathy for the situation in which the petitioner did find himself cannot suffice to confer authority on
respondent to grant what is asked of him in view of the constitutional ban. Both petitioner, who was himself
once a public official, and respondent Auditor General must be cognizant of the paramount character of the
Constitution. Thus everyone in the public service is only the more strongly bound to submit to such supremacy
and abide by the limitations which it imposes upon every aspect of the authority thus conferred. 16
WHEREFORE, the decision of the Auditor General of June 28, 1966, as reiterated in its order denying the motion
for reconsideration of September 1, 1966, is affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ., concur.
Teehankee, J., took no part.
Barredo, J., did not take part.
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the
COMMISSION ON ELECTIONS, Respondent.

DECISION

42
CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner
Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who
had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat
attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the
power of the President of the Philippines to make the challenged designation in view of the status of the
Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section
1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on Elections) be appointed or
designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino
designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the
designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member
of the Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal
matter that should be resolved by the members themselves and that the intrusion of the President of the
Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice
serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President of the
Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme
Court because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar
rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case
of the Commission on Elections. The designation made by the President of the Philippines should therefore be
sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the
Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not
stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even
assuming that difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor
General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as
"independent." Although essentially executive in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions. Each of these Commissions conducts its own
proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions,
orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article
IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That
discretion cannot be exercised for it, even with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No
cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as
Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation,
will not be estopped from challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent
position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman,
with or without cause, and thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to
fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws
and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential
action. The situation could have been handled by the members of the Commission on Elections themselves
without the participation of the President, however well-meaning.

43
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been
guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the
basis thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of
motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her
act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista
case, so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost
among which is the security of tenure of its members. That guaranty is not available to the respondent as Acting
Chairman of the Commission on Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting
Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby
ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of
the Commission on Elections restoring her to the same position if they so desire, or choosing another member in
her place, pending the appointment of a permanent Chairman by the President of the Philippines with the
consent of the Commission on Appointments.: rd
SO ORDERED.
G.R. No. 100113

September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO
CARAGUE, in his capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are
involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of
a college degree, and must not have been candidates for any elective position in the immediately preceding
-elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly
provides:
There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of
age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of
the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal
qualification to an appointive office.
Black defines "practice of law" as:

44
The rendition of services requiring the knowledge and the application of legal principles and technique to serve
the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the
conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal
advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney,
using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate.
(Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,
129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms, associations or corporations as
to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law
or authorized to settle controversies and there, in such representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice
of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of
pleadings and other papers incident to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to
clients, and all action taken for them in matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done involves the determination by the trained
legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work performed outside of any court and
having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to
the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the
order, can be drawn between that part of the work of the lawyer which involves appearance in court and that
part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the
public that these manifold customary functions be performed by persons possessed of adequate learning and
skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion
of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975)
listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and
he follows some one or more lines of employment such as this he is a practicing attorney at law within the
meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

45
The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of
the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of
the provisions on the Commission on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the
qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting
from the provision "who have been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in
the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We
have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are qualified to be considered for
appointment as members or commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this provision on
the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years
is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law
practice that is set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal
work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our provisions on the Commission on
Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less
than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of
law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word
"lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of
lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois],
[1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly understood, means "an
individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice
alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership
and members of the firm are the partners. Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are the experienced attorneys. In most
firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

46
The test that defines law practice by looking to traditional areas of law practice is essentially tautologous,
unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or
out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626
[1941]). Because lawyers perform almost every function known in the commercial and governmental realm,
such a definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers
as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do
continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception
of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this
so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a
business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is
one who principally tries cases before the courts. The members of the bench and bar and the informed laymen
such as businessmen, know that in most developed societies today, substantially more legal work is transacted
in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work
also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery
should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal tasks, each
involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested
parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal
services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from
one legal task or role such as advice-giving to an importantly different one such as representing a client before
an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a
litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to
have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting,
and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective
for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important
ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of
these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed
both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that
work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate
law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends in corporation law is
indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature
and implications of the corporate law research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly
"model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in
many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses
of action, and the need for fast decision and response in situations of acute danger have prompted the use of
sophisticated concepts of information flow theory, operational analysis, automatic data processing, and

47
electronic computing equipment. Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting the trends of the
law, the subject of corporate finance law has received relatively little organized and formalized attention in the
philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research
has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or doctorate degree in business
administration or management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which are currently engaged in
similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services of an astute
attorney because of the complex legal implications that arise from each and every necessary step in securing
and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He
is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate
lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type
of the corporation. Many smaller and some large corporations farm out all their legal problems to private law
firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough
to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His
areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including
the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the
corporation he is representing. These include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not understanding
how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to
see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more
closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC).
Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international
law field. After all, international law is practiced in a relatively small number of companies and law firms.
Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate
lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do
their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good
lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business
Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking
of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities
Code but an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of
insights into current advances which are of particular significance to the corporate counsel; (2) an introduction

48
to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion
to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise
known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he
provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple
levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and
simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities
but with each other often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The
modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the
organization and operations of governance through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These
trends are complicated as corporations organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies toward the promotion and
management of technology. New collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that differ from older, more adversarial
relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between
governmental and business Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group
within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable factors in the group-context interaction
such as the groups actively revising their knowledge of the environment coordinating work with outsiders,
promoting team achievements within the organization. In general, such external activities are better predictors
of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and insurance considerations. (Emphasis
supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial
thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical,
economic, managerial, social, and psychological. New programming techniques now make the system dynamics
principles more accessible to managers including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In
the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and
mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A simulation case of an international joint
venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern three pointed areas of
consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general
counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made.

49
Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to
which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice
and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global
economy work.
Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last
decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for
key aspects of the firm's strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating
new and varied interactions with public decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good
general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And
even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must,
at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only
the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel,"
April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial
law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk
opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11,
1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the
COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of
having been engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the
COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the
COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination,
petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be
declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a
grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception
in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124,
Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office
of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting acquainted with the laws of membercountries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986, has rendered services to various
companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986)
and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He
appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his
personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in
initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission
(1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile

50
government functions with individual freedoms and public accountability and the party-list system for the House
of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to
meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned,
there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as
an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven,
"Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants;
and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing
the tasks of legislative drafting and legal advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States
Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan
World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973).
( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise
in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign
lawyer may work with an international business specialist or an economist in the formulation of a model loan
agreement. Debt restructuring contract agreements contain such a mixture of technical language that they
should be carefully drafted and signed only with the advise of competent counsel in conjunction with the
guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External
Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which
determines the contractual remedies for a failure to perform one or more elements of the contract. A good
agreement must not only define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a
devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an
adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice
Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men
learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The
Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and
Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of
law practice, and taking into consideration the liberal construction intended by the framers of the Constitution,
Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more
than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten
years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving considerations of wisdom which
only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it
stated:

51
It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are
satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment on the ground that another person is
more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its
choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President
issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of
the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the
traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of
law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution.
Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or
three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly,
this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use
of a definition of law practice which really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as
evident from my statement that the definition of law practice by "traditional areas of law practice is essentially
tautologous" or defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in
making use of the law, or in advising others on what the law means, are actually practicing law. In that sense,
perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar,
who has been practising law for over ten years. This is different from the acts of persons practising law, without
first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on
the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an
action or petition be brought against the President? And even assuming that he is indeed disqualified, how can
the action be entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation,
implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered
by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction
and would warrant the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1)
If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse
the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.

52
(2)
In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer
is likewise clear.
(3)
If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a
Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was
Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot
two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the
procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood
flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
G.R. No. 149036

April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,

vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C.
DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the Commission on Elections,
respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and
a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G.
Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office
of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections
("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr.
("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of
Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELECs Education and Information Department
("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February
15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in
a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment
of petitioner to the same position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3
and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all expiring on
February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and
Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of
the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said
appointments.

53
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of seven years, expiring on February 2, 2008.7 They took their oaths of
office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.8
Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8,
2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to
the same positions.9 The Office of the President submitted their appointments for confirmation to the
Commission on Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111 addressed to
petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-inCharge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge
Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated April 14, 200112 addressed to
the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the
Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7
dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for
reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which
states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution,
the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance of its mandated functions during the
prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period
before election day shall be effected after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16 with the Law
Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other
pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and
Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo,
Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also
assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department.
Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner,
moreover, questions the legality of the disbursements made by COMELEC Finance Services Department Officerin-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim
appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a
term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of
judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim
appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article
IX-C of the Constitution;

54
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of
office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the approval of
the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its
power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is
co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad
interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are
present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19Respondents argue that the
second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a
personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments
at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad
interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the
petition was filed after the third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the
Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this
case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she
was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayos
authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer."21
Evidently, respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of
the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC.
Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not
the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with
the Constitution, then petitioners reassignment is legal and she has no cause to complain provided the
reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in
the resolution of the constitutionality of Benipayos assumption of office. Petitioners personal and substantial
injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments
of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad
interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition
that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity
to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same,
such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the
trial, it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may

55
determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.23
There is no doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim
appointment and assumption of office. Unless the constitutionality of Benipayos ad interim appointment and
assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department
cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be
put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to
determine whether other agencies of government have remained within the limits of the Constitution and have
not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve
any constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited
by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission
on Appointments for a term of seven years without reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her
pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this
reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited
by the last sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for
the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the
last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his
appointment is confirmed by the Commission on Appointments for only then does his appointment become
permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence
of the President or members of the Commission on Appointments since his appointment can no longer be
recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and
confirming powers since his appointment can be terminated at any time for any cause. In the words of
petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the
Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer
be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself
makes an ad interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16,
Article VII of the Constitution provides as follows:
"The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress." (Emphasis supplied)

56
Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it
can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at
any time and for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:
"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the
Constitution, which provides that the President shall have the power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent
character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period
has expired. Said appointment is of course distinguishable from an acting appointment which is merely
temporary, good until another permanent appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim
appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure
officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,26
this Court elaborated on the nature of an ad interim appointment as follows:
"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session and when it is in recess. In the former, the President
nominates, and only upon the consent of the Commission on Appointments may the person thus named assume
office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may
thus qualify and perform his function without loss of time. His title to such office is complete. In the language of
the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the
next adjournment of the Congress."
Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for
the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,27 where we explained that:
"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the
situation. Private respondent had been extended several ad interim appointments which petitioner mistakenly
understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim
which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus,
an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the
absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978).
But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans
appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to
denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in
the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of
appointment, is unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text
of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again
occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court
of Appeals,28 where the Court stated:
"We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment,
that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes
the manner in which the appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The
permanent status of private respondents appointment as Executive Assistant II was recognized and attested to
by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad
interim appointment is synonymous with a temporary appointment which could be validly terminated at any
time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board
disapproves them." (Emphasis supplied)

57
An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or
employee in the civil service shall be removed or suspended except for cause provided by law."29 Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.30 Once an appointee has qualified, he acquires a legal right to the office which is protected not only by
statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with
the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one,
however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of
the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing
power.31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is
the kind of appointment that the Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as
Acting Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No
cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as
Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation,
will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost
among which is the security of tenure of its members. That guarantee is not available to the respondent as
Acting Chairman of the Commission on Elections by designation of the President of the Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a
provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled
that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence
violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the
framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily."
(Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were
extended permanent appointments during the recess of Congress. They were not appointed or designated in a
temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General
Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason
are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to
make appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be independent"36, this provision should be
harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also
run counter to the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original

58
intention of the framers of the Constitution was to do away with ad interim appointments because the plan was
for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to
provide for ad interim appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of
anticipating interruption of government business, considering that we are not certain of the length of
involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of
the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula
x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring
with the Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of
Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO
MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT
SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS
OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon,
adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is
approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was
for the purpose of avoiding interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr.
explained the rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of
Congress, the evil sought to be avoided interruption in the discharge of essential functions may take place.
Because the same evil would result if the appointments ceased to be effective during the session of Congress
and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may
easily be conjured by the issuance of other ad interim appointments or reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided
the interruption of essential government services in the May 2001 national elections. Following the decision of
this Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms of
office of constitutional officers first appointed under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual appointment.
By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would
end on February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to
her appointment papers, until February 15, 2002,41 the original expiry date of the term of her predecessor,
Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner
Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was
November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with

59
national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and
Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court
the applicability of the Gaminde ruling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing
her successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections.
Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case but this Court denied the
intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June considering
that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the
Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for
Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to
be confirmed by the Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May
2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and
decided in division",46 the remaining one division would have been swamped with election cases. Moreover,
since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the
mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to travel around the country before, during and after the
elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur
because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections,
right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim
appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President
to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes in appointing officials who are subject to
confirmation by the Commission on Appointments. First, while Congress is in session, the President may
nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee
cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a
matter within the prerogative of the President because the Constitution grants her that power. This Court cannot
inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent
grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in
the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former
President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former
President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani,
Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also extended ad
interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain
and Ralph C. Lantion.49
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of
both the appointing and confirming powers. This situation, however, is only for a short period - from the time of
issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent.
The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government
services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the
evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the
Presidents appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed
appointments, and not one President will appoint all the COMELEC members.50 In the instant case, the
Commission on Appointments had long confirmed four51 of the incumbent COMELEC members, comprising a

60
majority, who could now be removed from office only by impeachment. The special constitutional safeguards
that insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy,
appoints its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover,
the salaries of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments
prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission
on Appointments for a term of seven years without reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years, and the last members for three years, without
reappointment. X x x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent
appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interim
appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no
longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments
in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision
on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the
qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the
President can no longer renew the appointment not because of the constitutional prohibition on reappointment,
but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final
decision by the Commission on Appointments to give or withhold its consent to the appointment as required by
the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed
appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as
follows:
"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments
submitted by the President of the Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President and, unless new nominations or appointments are made, shall not
again be considered by the Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again
if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes53 why by-passed ad interim appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the
incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon
"the next adjournment of the Congress", simply because the President may then issue new appointments - not
because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for,
under the Constitution, the Commission may affect adversely the interim appointments only by action, never by
omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior
thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that

61
the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim
appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the
circumstance that upon said adjournment of the Congress, the President is free to make ad interim
appointments or reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of
the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under
the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved
nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad
interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not
because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad
interim appointment can be revived by a new ad interim appointment because there is no final disapproval
under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee
serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations
where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be
reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving
more than seven years. The second situation is where the appointee, after confirmation, serves a part of his
term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether
as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the
appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve
the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such
person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar
to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision
refers to the first appointees under the Constitution whose terms of office are less than seven years, but are
barred from ever being reappointed under any situation. Not one of these four situations applies to the case of
Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member whether for a full term of seven years, a truncated term of five or three years, or even for
an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz
succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of
Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is
for seven years. But in cases where the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words "without reappointment" in the case of those appointed,
then it is possible that an interpretation could be made later on their case, they can still be reappointed to serve
for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed
under the Constitution, no reappointment can be made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57
that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years,
provided his term will not exceed nine years in all." This was the interpretation despite the express provision in
the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be
reappointed."

62
To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C
of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a
term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term
of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not
matter if the person previously appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is
neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase "without reappointment" applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of office. There
must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition
on reappointment can apply. To hold otherwise will lead to absurdities and negate the Presidents power to
make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the
President will certainly hesitate to make ad interim appointments because most of her appointees will
effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for
those who have been previously appointed and confirmed even if they served for less than seven years. The
second is to insure that the members of the three constitutional commissions do not serve beyond the fixed
term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz,
who sponsored58the proposed articles on the three constitutional commissions, outlined the four important
features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2)
fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to
minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to
decrease salaries of the members of the Commissions during their term of office; and 4) appointments of
members would not require confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the
Commission on Appointments of all appointments to the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years.
The following exchange in the deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of
all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case shall any Member be
appointed in a temporary or acting capacity." I detect in the Committees proposed resolutions a constitutional
hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the
Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable
Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5
years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So,
if we follow that appointment to (its) logical conclusion, he occupied that position for about 12 years in violation
of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed
to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied)

63
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment
of any kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The
purpose of the last sentence is to make sure that this does not happen by including in the appointment both
temporary and acting capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind.
On the other hand, the prohibition on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an appointees total term of office
exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific - reappointment
of any kind and exceeding ones term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the
screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to
plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion
in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR
DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED
in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be
appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction
between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit
Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase
that distinction between appointment and designation, we should specifically place the word so that there will
be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is
approved."62
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not
violate the prohibition on reappointments because there were no previous appointments that were confirmed by
the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same
ad interim appointments and renewals of appointments will also not breach the seven-year term limit because
all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring
on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office.
Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these three
respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution.
The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of
office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IXC of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the
Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such
reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from
office without due process and therefore illegal.

64
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of
the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he
has full authority to exercise all the powers of that office for so long as his ad interim appointment remains
effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of
the COMELEC is vested with the following power:
"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive
Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil
Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer
or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the
Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as
Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only
in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does
she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service
Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice
Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to
that position cannot be considered permanent, and she can claim no security of tenure in respect of that
position. As held in Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only to a person who meets all the requirements for
the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At
best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at
will by the appointing authority and at a moments notice, conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on
its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment
extended to him cannot be regarded as permanent even if it may be so designated x x x."
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment
was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting
appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to
her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer
or detail whatever of any officer or employee in the civil service including public school teachers, within the
election period except upon prior approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election
period.

65
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer
or detail whatever of any officer or employee in the civil service including public school teachers, within the
election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections
during the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest,
peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution,
the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance of its mandated functions during the
prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period
before election day shall be effected after due notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC
Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will
mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require
such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every
personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of
securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel.
The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution
No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus,
Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of
the Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the
EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.

66
G.R. No. 95346 January 18, 1991
PERFECTO
V.
vs.
COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents.
Paulino G. Clarin and Giselo Galido for petitioner.
De Castro & Cagampang Law Offices for private respondent.
RESOLUTION

GALIDO, petitioner,

PADILLA, J.:p
This is a special civil action for certiorari and preliminary injunction with prayer for a temporary restraining order,
to prohibit respondent Commission on Elections from implementing its questioned decision dated 14 December
1989 and resolution dated 20 September 1990, and private respondent Saturnino R. Galeon from assuming
office as Mayor of Garcia-Hernandez, Province of Bohol.
Petitioner and private respondent were candidates during the 18 January 1988 local elections for the position of
mayor in the Municipality of Garcia-Hernandez, Province of Bohol. Petitioner was proclaimed duly-elected Mayor
of Garcia-Hernandez, by the Municipal Board of Canvassers.
On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the Regional Trial
Court of Bohol, 7th Judicial Region, Branch I, Tagbilaran City. After hearing, the said court upheld the
proclamation of petitioner as the duly-elected Mayor of Garcia-Hernandez, by a majority of eleven (11) votes.
Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its First
Division, the COMELEC reversed the trial court's decision and declared private respondent the duly-elected
mayor by a plurality of five (5) votes. Petitioner's motion for reconsideration was denied by the COMELEC in
its en bancresolution of 20 September 1990 which affirmed the decision of its First Division. The COMELEC held
that the fifteen (15) ballots in the same precinct containing the initial "C" after the name "Galido" were marked
ballots and, therefore, invalid. The COMELEC said:
On the argument relied upon by the appellee that the case of Inguito vs. Court of Appeals is not
the case in point but the cases of Bisnar vs. Lapasa and Katigbak vs. Mendoza, supra should be
the applicable jurisprudence, the settled rule and which is controlling is where a word or a letter
recurs in a pattern or system to mark and identify ballots, the ballots containing the same should
be rejected as marked ballots (Silverio vs. Castro, supra; Inguito vs. Court of Appeals, 21 SCRA
1015), and the introduction of evidence aliunde is not necessary when the repetition of a word or
letter in several ballots in the same precinct constitutes a clear and convincing proof of a design
to indentify the voters. (P. 38, Rollo of G.R. No. 95346)
On 25 September 1990, petitioner filed before this Court a petition for certiorari and injunction, which was
docketed as G.R. No. 95135.
On 27 September 1990, we resolved to dismiss the said petition for failure of petitioner to comply with
paragraph 4 of the Court's Circular No. 1-88 which requires that a petition shall contain a verified statement of
the date when notice of the questioned judgment, order or resolution was received and the date of receipt of the
denial of the motion for reconsideration, if any was filed. Petitioner filed a motion for reconsideration which we
denied with finality in the resolution of 4 October 1990.
Undaunted, petitioner filed on 6 October 1990 the present petition for certiorari and injunction with prayer for a
restraining order (G.R. No. 95346) which contains the same allegations and legal issues contained in G.R. No.
95135.
On 11 October 1990, we issued the temporary restraining order prayed for by petitioner and required
respondents to file comment on the petition.
In his Comment, private respondent Saturnino R. Galeon moves for the dismissal of the present petition, for the
following three (3) main reasons:
1. Final decisions, orders or rulings of the Commission on Elections (COMELEC) in election contests involving
elective municipal offices are final and executory, and not appealable. Private respondent cites Article IX (C),
Section 2(2), paragraph 2 of the 1987 Constitution, which reads as follows:
Decisions, final orders, or ruling of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.
The above constitutional provision is implemented in the Rules of Procedure promulgated by the COMELEC,
particularly Part VII Rule 39, Section 2 thereof, which reads:
Sec. 2. Non-reviewable decisions. Decisions in appeals from courts of general or limited
jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and
barangay official are not appealable.
According to private respondent, since appeals of COMELEC decisions in election contests involving municipal
and barangay officials are not allowed by the Constitution, it follows that the COMELEC decision in the case at
bar should be executed or implemented.
2. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots) which is
beyond the power of review of this Court. The COMELEC found that the writing of the letter "C" after the word

67
"Galido" in the fifteen (15) ballots of Precinct 14 is a clear and convincing proof of a pattern or design to identify
the ballots and/or voters. This finding should be conclusive on the Court.
3. Exactly the same petition involving identical allegations, grounds and legal issues was dismissed with
finality by this Court in G.R. No. 95135. The inadvertent issuance of a temporary restraining order by the Court in
this case has wreaked havoc and chaos in the municipality of Garcia-Hernandez where private respondent has
already assumed his position as the duly-elected mayor.
In his Reply to the Comment, petitioner avers
1 Article IX (A), Section 7 of the 1987 Constitution provides:
Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the rules of the Commission or by the Commission itself Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof.
Since under the same Constitution (Article VIII, Section 1), judicial power is vested in one Supreme Court, the
present petition can still be brought to the Supreme Court by certiorari. Petitioner contends that this petition is
not an ordinary appeal contemplated by the Rules of Court or by provision of the Constitution.
2. The petition involves pure questions of law. The correct interpretation of Section 211. No. 10 of Batas
Pambansa Blg. 881 is definitely a question of law. It states:
10. The erroneous initial of the first name which accompanies the correct surname of a candidate,
the erroneous initial of the surname accompanying the correct first name of the candidate, or the
erroneous middle initial of the candidate shall not annul the vote in favor of the latter.
In several cases decided by this Court, according to petitioner, it was held that in the appreciation of ballots
where there is no evidence aliunde of a purpose to identify the ballots, the same should not be invalidated as
marked ballots. The COMELEC thus committed grave abuse of discretion when it disregarded the cited decisions
of this Court and declared that the suffix "C" after the name Galido was in reality a countersign and not a mere
erroneous initial.
3. The dismissal with finality of G.R. No. 95135 (the first petition) did not refer to the merits of the petition. The
said dismissal was due to the failure of petitioner to submit requisite papers duly certified. That is why upon
petitioner's submission of the requirements in his second (the present) petition, this Court granted the request
for the issuance of a temporary restraining order.
The Court finds the petition to be without sufficient merit.
The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city officials and has appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or
involving elective barangay officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2),
paragraph 1 of the 1987 Constitution).
In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15)
ballots in the same precinct containing the letter "C" after the name Galido are clearly marked ballots. May this
COMELEC decision be brought to this court by a petition for certiorari by the aggrieved party (the herein
petitioner)?
Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated:
"(U)nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each (Constitutional)
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof."
On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution
which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving
elective municipal and barangay offices shall be final, executory, and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission
on Elections in contests involving elective municipal and barangay offices are final, executory and not
appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The
proceedings in the Constitutional Commission on this matter are enlightening. Thus
MR. FOZ. So, the amendment is to delete the word "inappealable."
MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because
decisions are always final, as distinguished from interlocutory orders. So, it should read: "However,
decisions, final orders or rulings," to distinguish them from intercolutory orders, ". . . of the
Commission on Elections on municipal and barangay officials shall be final and IMMEDIATELY
executory."
That would be my proposed amendment.
MR. FOZ. Accepted, Mr. Presiding Officer.
MR. REGALADO. It is understood, however, that while these decisions with respect to barangay
and municipal officials are final and immediately executory and, therefore, not appealable, that

68
does not rule out the possibility of an original special civil action for certiorari, prohibition,
or mandamus, as the case may be, under Rule 65 of the Rules of Court.
MR. FOZ. That is understood, Mr. Presiding Officer.
MR. REGALADO. At least it is on record.
Thank you, Mr. Presiding Officer. 1
We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in rendering the questioned decision. It is settled that the function of a writ
of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from
committing a grave abuse of discretion amounting to lack or excess of jurisdiction.
As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on
physical evidence, equity, law and justice, and apply established jurisprudence in support of its findings and
conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which
should not be controlled unless such discretion has been abused to the prejudice of either party. (Rollo, p. 107)
Finally, the records disclose that private respondent had already assumed the position of Mayor of GarciaHernandez as the duly-elected mayor of the municipality by virtue of the COMELEC decision. The main purpose
of prohibition is to suspend all action and prevent the further performance of the act complained of. In this light,
the petition at bar has become moot and academic. (G.R. No. 81383. Atty. Felimon et al. vs. Atty. Belena et al.
Apr. 5, 1988 resolution.)
ACCORDINGLY, the petition is DISMISSSED. The temporary restraining order earlier issued by the Court is LIFTED.
SO ORDERED.
G.R. Nos. 93419-32 September 18, 1990
PEOPLE
OF
THE
PHILIPPINES,
petitioner,
vs.
HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA
ABARIDO, AVELINA BUTASLAC, ROSELLANO BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE LUMANGTAD,
MAXIMO RACAZA, NENA RACAZA, VICTORIANO/ VICTOR RAGO, EDNA TEJAS, MERCEDITA TEJAS, TEOFISTO TEJAS,
BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents.
Jose P. Balbuena for petitioner.
Fred B. Casas for respondents.
GANCAYCO, J.:
The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC)
in the investigation and prosecution of election offenses filed in said court is the center of controversy of this
petition.
On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar
of Toledo City, against private respondents for alleged violation of the Omnibus Election Code. The COMELEC
directed Atty. Manuel Oyson, Jr., Provincial Election Supervisor of Cebu, to conduct the preliminary investigation
of the case.
After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima
facie case and recommending the filing of an information against each of the private respondents for violation of
Section 261 (y) (2) and (5) of the Omnibus Election Code. The COMELEC en banc in minute resolution No. 891291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2, 1989 resolved to file the
information against the private respondents as recommended.
On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of
Toledo City docketed as Criminal Cases Nos. TCS-1220 to TCS-1234. In three separate manifestations the
Regional Election Director of Region VII was designated by the COMELEC to handle the prosecution with the
authority to assign another COMELEC prosecutor.
Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant
of arrest with the respondent court on the ground that no preliminary investigation was conducted. On February
22, 1990 an order was issued by respondent court directing the COMELEC through the Regional Election Director
of Region VII to conduct a reinvestigation of said cases and to submit his report within ten (10) days after
termination thereof. The Toledo City INP was directed to hold in abeyance the service of the warrants of arrest
until the submission of the reinvestigation report. 1
On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for
reinvestigation alleging therein that it is only the Supreme Court that may review the decisions, orders, rulings
and resolutions of the COMELEC. This was denied in an order dated April 5, 1990 whereby the respondent trial
court upheld its jurisdiction over the subject matter. 2
Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised:
(a) Whether or not the respondent Court has the power or authority to order the Commission on
Elections through its Regional Election Director of Region VII or its Law Department to conduct a
reinvestigation of Criminal Cases Nos. TCS-1220 to TCS-1234;
(b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely
usurped the functions of the Honorable Supreme Court, the sole authority that has the power to

69
review on certiorari, decisions, orders, resolutions or instructions of the Commission on Elections;
and
(c) Whether or not the respondent Court has the power or authority to order the Comelec Law
Department to furnish said respondent the records of preliminary investigation of the above
criminal cases for purposes of determining a probable cause. 3
The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its
actions on election matters may be reviewed only on certiorari by the Supreme Court. 4
On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public
prosecutor, and not in the exercise of its power to decide election contests, the trial court has authority to order
a reinvestigation.
Section 2, Article IX-C of the Constitution provides:
SEC. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction or
involving elective baranggay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and
accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall
not be registered. Those which seek to achieve their goals through violence or unlawful means, or
refuse to uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the cancellation of their registration
with the Commission in addition to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions or
exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates.
(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall. (Emphasis supplied.)
Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and
functions of the COMELEC as followsSec. 52. Power and functions of the Commission on Elections.-In addition to the powers and
functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections for the purpose of
securing free, orderly and honest elections .... (Emphasis supplied.)
Section 7, Article IX-A of the Constitution reads thus
SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the rules of the Commission or by the Commission
itself. Unless otherwise provided by this Constitution or by law any decision, order, of ruling or
each Commission may be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof. (Emphasis supplied.)
From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the
COMELEC may be classified in this manner

70
(1) Enforcement of election laws; 5
(2) Decision of election contests; 6
(3) Decision of administrative questions; 7
(4) Deputizing of law enforcement agencies; 8
(5) Registration of political parties; 9 and
(6) Improvement of elections. 10
As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or
ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
In Filipinas Engineering and Machine Shop vs. Ferrer, 11 this Court held that "what is contemplated by the term
final orders, rulings and decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by
law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in
the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election
contests or administrative questions brought before it are subject to judicial review only by this Court.
However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where
appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election
frauds, offenses and malpractices." Under Section 265 of the Omnibus Election Code, the COMELEC, through its
duly authorized legal officers, "have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same."
Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to
try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense
of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial
courts. From the decision of the courts, appeal will lie as in other criminal cases."
From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the
adjudicatory or quasi-judicial power of the COMELEC to decide election contests and administrative questions, it
is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary
investigation and the prosecution of election offenses punishable under the Code before the competent court.
Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an
election offense and upon a prima facie finding of a probable cause, files the information in the proper court,
said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case
must be subject to the approval of the court. 12 The COMELEC cannot conduct a reinvestigation of the case
without the authority of the court or unless so ordered by the court. 13
The records of the preliminary investigation required to be produced by the court must be submitted by the
COMELEC. The trial court may rely on the resolution of the COMELEC to file the information, by the same token
that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the
issuance of the warrant of arrest. Nevertheless the court may require that the record of the preliminary
investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a
warrant of arrest. 14
The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a
reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground
that only this Court may review its actions is certainly untenable.
One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can
represent the People of the Philippines in this proceeding. 15 In the least, the consent of the Office of the Solicitor
General should have been secured by the COMELEC before the filing of this petition. On this account alone, the
petition should be dismissed.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Fernan, C.J. and Paras, J., are on leave.
G.R. No. 88919 July 25, 1990
PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY,
AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.
GUTIERREZ, JR., J.:
Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have
to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take
cognizance of the investigation and determine whether or not probable cause exists?
On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of
Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a

71
permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and
without obtaining prior permission or clearance from COMELEC as required by law.
Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete
City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in
court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a
resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation
was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the
constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article
XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision.
The Resolution provides, among others:
xxx xxx xxx
Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to
conduct preliminary investigations of election offenses committed in their respective jurisdictions,
file the corresponding complaints and/or informations in court whenever warranted, and to
prosecute the same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)
After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on
September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h),
Omnibus Election Code against the OIC-Mayor.
In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC
Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election
Supervisor.
However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside
its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause
pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the
information filed in this case if the same has the written approval of the Provincial Fiscal after which the
prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis
supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file
another information charging the same offense with the written approval of the Provincial Fiscal.
Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court
quashed the information. A motion for reconsideration was denied.
Hence, this petition.
The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election
Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks
to prosecute in court because:
While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly
authorized legal officers of the Commission on Elections have the exclusive power to conduct
preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether
said authority under the auspices of the 1973 Constitution, still subsists under the 1987
Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible
officer as may be authorized by law" in the equivalent section and article of the 1973 Constitution.
(Rollo, p. 24)
The petition is impressed with merit.
We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge ... " (Article III, Section 2,
Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the
determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By
itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts
of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which
are material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable
cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and
the same proceeding, there should be no confusion about the objectives. The determination of probable cause
for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

72
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to
conduct preliminary investigations. That authority, at one time reposed in them under Sections
13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of
1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp.
115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January
1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to
said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to
stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary
investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the
executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary
investigations, courts are counseled to leave this job which is essentially executive to them," and
the fact "that a certain power is granted does not necessarily mean that it should be
indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1,
1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988)
did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact
deal at all with the officers or courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make
apreliminary examination for the purpose of determining whether probable cause exists to justify
the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a
duty as it is a power has been and remains vested in every judge by the provision in the Bill of
Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against
unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule
or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no
longer conduct preliminary investigations to ascertain whether there is sufficient ground for the
filing of a criminal complaint or information, he retains the authority, when such a pleading is filed
with his court, to determine whether there is probable cause justifying the issuance of a warrant of
arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of
Salta because both law and rule, in restricting to judges the authority to order arrest, recognize
that function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the determination
of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we
address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the
COMELEC regarding election offenses.
Article IX C Section 2 of the Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election
laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis
supplied)
In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of
violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in
cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an
information in court. This power is exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to enforce and administer all laws relative
to the conduct of election and the concomittant authority to investigate and prosecute election
offenses is not without compelling reason. The evident constitutional intendment in bestowing this
power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of
which would result in the frustration of the true will of the people and make a mere idle ceremony
of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the
authority to investigate and prosecute offenses committed by public officials in relation to their
office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.
From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We
perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the
authority to investigate, prosecute and hear election offenses committed by public officers in
relation to their office as contradistinguished from the clear and categorical bestowal of said

73
authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182
and 184, respectively, of the Election Code of 1978.
An examination of the provisions of the Constitution and the Election Code of 1978 reveals the
clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute
election offenses committed by any person, whether private individual or public officer or
employee, and in the latter instance, irrespective of whether the offense is committed in relation
to his official duties or not. In other words, it is the nature of the offense and not the personality of
the offender that matters. As long as the offense is an election offense jurisdiction over the same
rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of
elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])
Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or
Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is
because he has been deputized by the COMELEC. He does not do so under the sole authority of his office.
(People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).itc-asl In the instant case, there is no
averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He
wants the Fiscal to "approve" the COMELEC's preliminary investigation.
It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President
issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON
MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive
power to conduct preliminary investigation of all election offenses punishable as provided for in
the preceding section, and to prosecute the same: Provided, That in the event that the
Commission fails to act on any complaint within two (2) months from filing, the complainant may
file the complaint with the Office of the Fiscal or with the Department of Justice for proper
investigation and prosecution, if warranted.
The Commission may avail of the assistance of other prosecuting arms of the government.
It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that
section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of
arrest is made and the information is filed with the court, the judge will then determine whether or not a
probable cause exists for the issuance of a warrant of arrest.
Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional
provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what
the respondent trial court should have done was to enforce its September 30, 1988 order, to wit:
Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and
considering that after a personal examination of the evidence submitted by the investigating
Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable
ground for this Court to rely on the certification of said Provincial Election Supervisor III in the
information that a probable cause exists, let a warrant issue for the arrest of the accused filing the
bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor
III.
The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.
WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22,
1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September
30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed
until its termination.
SO ORDERED.