THIRD DIVISION

RUBEN S. GALERO, G.R. No. 151121

Petitioner,
Present:

QUISUMBING, J.,*
- versus - YNARES-SANTIAGO,
Chairperson,
AUSTRIA-MARTINEZ,
NACHURA, and
THE HONORABLE COURT OF APPEALS, REYES, JJ.
DEPUTY OMBUDSMAN (VISAYAS), and
PHILIPPINE PORTS AUTHORITY, Promulgated:
Respondents.
July 21, 2008

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

For review is the Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 57397 dated
April 26, 2001 affirming the Resolution[2] of the Office of the Ombudsman (Visayas) in OMB-VIS-
ADM-97-0565 finding petitioner Ruben S. Galero guilty of Dishonesty, Falsifying Official
Documents and Causing Undue Injury to the Government and imposing the penalty of dismissal
from service, forfeiture of all benefits and perpetual disqualification to hold public
office. Likewise assailed is the CAs Resolution[3] dated December 21, 2001 denying his motion
for reconsideration.

The factual and procedural antecedents follow:

On January 17, 1997, Rogelio Caigoy (Mr. Caigoy), then the resident Ombudsman of the
Philippine Ports Authority Port Management Office (PPA-PMO), Pulupandan, Negros Occidental,
received an anonymous letter from concerned citizens, reporting that Robert Geocadin (Mr.
Geocadin), a security guard of United Field Sea Watchmen and Checkers Agency (UFSWCA),
officially assigned at the National Power Corporation (Napocor) in Bacolod City, at the same
time submitted a Daily Time Record (DTR) at PPA-PMO but did not report to the said office.[4] He
received a second anonymous letter on December 16, 1997 stating that Mr. Geocadin was
receiving double salary from Napocor and PPA-PMO, and implicating the petitioner, who was
then the Acting Station Commander, Port Police Division, and Winfred Elizalde (Mr. Elizalde),
the Port Manager, both of the PPA-PMO. The said letter specifically claimed that petitioner and
Mr. Elizalde were each receiving shares in the security guards salary.[5] In short, the letters
charged that Mr. Geocadin was a ghost employee.

On the strength of the two anonymous letters, Mr. Caigoy recommended the filing of
criminal and administrative charges against petitioner and Mr. Elizalde in their capacities as
Acting Port Police Division Commander and Port Manager, respectively.[6] The administrative
case was docketed as OMB-VIS-ADM-97-0565 and was assigned to Graft Investigation Officer I
Helen Catacutan-Acas.

From the affidavits and counter-affidavits of the parties and witnesses, as well as their
testimonies and the documentary evidence presented, it appears that Mr. Geocadin was
officially assigned at the Napocor with the following areas of supervision:
1. Bacolod Sub-Station in Mansilingan;

2. Engineering Office in Bacolod City;

3. Tumonton Cable Station which is more or less twenty-two (22) km.

away from Bacolod Station;

4. Bulata Sipalay small stockyard which is more or less 20 km. away

from Bacolod City.[7]

At Napocor, petitioner was required to report for duty from 8:00 in the morning until 4:00 in
the afternoon, from April 16, 1996 until April 16, 1997. Covering almost the same period
from April 16, 1996 until November 30, 1996, Mr. Geocadin, who was also appointed as the
Station Commander of the security guards of PPA-PMO, filled up Civil Service Form No. 48 (DTR)
allegedly for services rendered for PPA-PMO from 8:00 in the morning until 5:00 in the
afternoon. The DTRs he submitted for seven (7) months were certified correct by petitioner
being Mr. Geocadins immediate superior.[8]

For his part, petitioner denied that Mr. Geocadin was a ghost security guard. He alleged that Mr.
Geocadin was designated by UFSWCA as Detachment Commander who was tasked to supervise
the security guards posted at PPA-PMO Bacolod City and Pulupandan and to inspect their
security equipment. Apart from these, Mr. Geocadin was assigned to issue mission orders;
prepare duty schedules; and act as paymaster and liaison officer. He, likewise, did clerical work
and prepared memoranda on disciplinary actions taken against erring security guards.[9] To
justify his lack of knowledge of Mr. Geocadins fraudulent acts, petitioner explained that because
PMO-Pulupandan was then in the process of reorganization, Mr. Geocadin was initially tasked
to conduct security inspection of the posts in Bacolod City and random inspections in other
stations.[10] In other words, petitioner was not expected to see Mr. Geocadin the whole day as
he could be in another station. Mr. Elizalde, on the other hand, claimed that whenever he
needed Mr. Geocadin, the latter was always available.

During the hearing of the case, Mr. Geocadin admitted that he was assigned both to Napocor
and PPA-PMO with 16-hour duty everyday.[11]

On May 31, 1999, the Office of the Ombudsman (Visayas) issued a Resolution[12] against
petitioner, the pertinent portion of which reads:

WHEREFORE, in the light of all the foregoing, this Office finds Ruben Galero guilty
of Dishonesty, for Falsifying Official Documents, and for causing undue injury to the
government, thus metes upon him, the penalty of DISMISSAL FROM SERVICE,
FORFEITURE OF ALL BENEFITS, and PERPETUAL DISQUALIFICATION TO PUBLIC
OFFICE in accordance with Memorandum Circular No. 30, Series of 1989 of the Civil
Service Commission.[13]

SO RESOLVED.

The Office of the Ombudsman declared that Mr. Geocadin was officially assigned at Napocor
and was not tied to only one post as he was then tasked to supervise four stations. Making use
of this set-up to his advantage, Mr. Geocadin took undeclared undertime with Napocor which
enabled him to accept his appointment with PPA-PMO. Though it may have been possible for
Mr. Geocadin to accept dual positions, it is impossible for him to be at different work stations
at the same time, as reflected in his DTRs both with Napocor and PPA-PMO. Considering that
Mr. Geocadin repeatedly committed the fraudulent act for a continuous period of seven (7)
months, the Office of the Ombudsman concluded that the petitioner, being his immediate
superior who verified his DTRs, was aware of such irregularity.[14] Hence, the extreme penalty of
dismissal as to the petitioner. Mr. Elizalde, on the other hand, was exonerated for lack of
evidence to show conspiracy. Petitioners motion for reconsideration was also denied
on December 10, 1999.[15]
Petitioner likewise failed to obtain a favorable judgment from the CA when his petition for
review was denied.[16] The appellate court declared that petitioners verification of Mr.
Geocadins DTRs was sufficient to hold him guilty as charged. His verification, according to the
court, enabled Mr. Geocadin to receive from the government such amounts not due him. The
court did not give credence to the affidavits of some security guards that Mr. Geocadin was
indeed their station commander. Neither did the appellate court consider the affidavit of
retraction executed by one of the witnesses.[17] In conclusion, the court said that there was
substantial evidence to establish petitioners guilt.

Aggrieved, petitioner comes before this Court in this petition for review raising the following
errors:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

FINDINGS OF THE OMBUDSMAN WHICH FINDING IS GROUNDED ENTIRELY ON
SPECULATION, SURMISES OR CONJECTURES.

II.

THE HONORABLE COURT OF APPEALS FAILS (SIC) TO NOTICE CERTAIN RELEVANT

FACTS WHICH, IF PROPERLY CONSIDERED, WILL JUSTIFY A DIFFERENT
CONCLUSION.

III.

THE FINDINGS OF THE HONORABLE COURT OF APPEALS AS TO THE VALIDITY OF

PETITIONERS DISMISSAL FROM SERVICE ARE CONTRADICTED BY THE EVIDENCE ON
RECORD.[18]

Before we rule on these assigned errors, we note that petitioner belatedly questioned in
his Reply[19] the scope of the Ombudsmans power and authority to dismiss government
employees. If only to erase doubts as to the Ombudsmans power to impose the penalty of
dismissal, we would like to stress the well-settled principle laid down in the two Office of the
Ombudsman v. Court of Appeals[20] cases and in Estarija v. Ranada.[21]

The powers, functions and duties of the Ombudsman are set forth in Section 15(3) of Republic
Act No. 6770 (R.A. 6770) otherwise known as the Ombudsman Act of 1989 which substantially
restates Section 13(3),[22] Article XI of the 1987 Constitution, thus:
 SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall
have the following powers, functions and duties:

xxxx

(3) Direct the officer concerned to take appropriate action against a public
officer or employee at fault or who neglects to perform an act or discharge a duty
required by law, and recommend his removal, suspension, demotion, fine, censure,
or prosecution, and ensure compliance therewith; or enforce its disciplinary
authority as provided in Section 21 of this Act; Provided, That the refusal by any
officer without just cause to comply with an order of the Ombudsman to remove,
suspend, demote, fine, censure or prosecute an officer or employee who is at fault
or who neglects to perform an act or discharge a duty required by law shall be a
ground for disciplinary action against said officer.[23]

The restrictive interpretation of the word recommend had long been rejected by this Court for
being inconsistent with the wisdom and spirit behind the creation of the Office of the
Ombudsman.[24] Instead, to be faithful to the constitutional objective, the word has been
construed to mean that the implementation of the Ombudsmans order of dismissal, suspension,
etc., is mandatory but shall be coursed through the proper officer.[25]

We have already ruled that although the Constitution lays down the specific powers of the
Ombudsman, it likewise allows the legislature to enact a law that would grant added powers to
the Ombudsman. To be sure, the provisions of R.A. 6770, taken together, reveal the manifest
intent of the lawmakers to bestow the Office of the Ombudsman full administrative disciplinary
authority. Specifically, it is given the authority to receive complaints, conduct investigations,
hold hearings in accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and employees
pending an investigation, determine the appropriate penalty imposable on erring public officers
or employees as warranted by the evidence, and necessarily, impose the said penalty.[26] Clearly,
the Office of the Ombudsman was given teeth to render this constitutional body not merely
functional but also effective.[27]

We now proceed to the meat of this petition on the validity of petitioners dismissal from service.

The CA affirmed the Office of the Ombudsmans conclusion that petitioner was guilty of
dishonesty for falsifying official documents and causing undue injury to the government. Both
the CA and the Ombudsman anchored such finding on the alleged collusion between petitioner
and Mr. Geocadin which enabled the latter to receive compensation from the government for
services not actually rendered.

We would like to reiterate at this point the undisputed facts material to the determination of
petitioners guilt. First, per UFSWCA records, Mr. Geocadin was officially assigned at the
Napocor, supervising the security guards of four stations. Second, though earlier branded as a
ghost employee, Mr. Geocadin was established to be the Station Commander of all the security
guards assigned at the PPA-PMO. Third, as Acting Station Commander, Port Police Division,
petitioner was the immediate superior of Mr. Geocadin whose duty was to supervise the
security guards and to certify to the truth of the entries they made in their DTRs. Fourth, Mr.
Geocadin was an employee of UFSWCA which had a contract with the government for security
services. Fifth, the payment of the security guards salaries was based on the DTRs they prepared
as certified by petitioner. Lastly, Mr. Geocadins DTRs submitted to Napocor and PPA show that
he was reporting for duty at the two offices at the same time, which is physically impossible.

Mr. Geocadins assignment and actual service at the PPA-PMO Pulupandan was sufficiently
established. This is shown by the communications he signed in his capacity as station
commander. He was not, therefore, a ghost employee as initially claimed by the concerned
citizens. This is bolstered by the Office of the Ombudsmans finding that the coverage of Mr.
Geocadins assignment with Napocor, where he was not tied to his post, enabled him to hold
such two positions.[28]Clearly, the Office of the Ombudsman itself recognized that Mr. Geocadin
rendered service at the PPA. Whether he rendered the 8-hour service as reflected in his DTR is
another matter which will be discussed below.

It is well to note that Mr. Geocadin was not a government employee, having been employed
only by UFSWCA, a private company supplying security services for both Napocor and PPA. He
was, however, required to submit his DTR which the government used to verify the correctness
of UFSWCAs billing with PPA-PMO. Like any other DTR, Mr. Geocadins DTR was certified by him
as reflecting his true attendance at the office, and verified by petitioner, the latter being his
immediate supervisor. The submission of another DTR stating that Mr. Geocadin was rendering
service at the Napocor at exactly the same time on the same dates makes his DTR with PPA
false. As pointed out by the Office of the Ombudsman, the fact remains that it would be
physically impossible for him to be simultaneously rendering services with Napocor and PPA-
PMO as reflected in his DTRs.[29]

In finding petitioner guilty of dishonesty, falsification of document and causing injury to the
government, the Office of the Ombudsman, as affirmed by the CA, ratiocinated, thus:

It is the finding of this office that respondent Geocadin cannot possibly do it alone
without [the] knowledge and consent of his most immediate superior Ruben
 Galero. It is unthinkable for this fact to be kept known by respondent Geocadin
alone, because it has been repeatedly done by him for a period of about seven (7)
months. Thus, respondent Ruben Galero cannot feign of having no knowledge on
what Geocadin was doing during said period because the latter is under his direct
and immediate supervision. Accordingly, a government official or officer is
presumed to have knowledge of the commission of any irregularity or offense,
when the irregularities or illegal acts have been repeatedly or regularly committed
within his official area of jurisdiction.[30]

While not totally exonerating petitioner from the charges filed against him, a modification of
the nature of petitioners administrative liability as well as the penalty that was correspondingly
imposed, is in order. The only basis of petitioners liability for dishonesty, etc., was the presumed
collusion between him and Mr. Geocadin. This stemmed from the unproven fact that Mr.
Geocadin was a ghost employee and that petitioner was receiving part of his (Mr. Geocadin)
salary. There was nothing in the record which establishes petitioners collusion or conspiracy
with Mr. Geocadin to defraud the government. For the purpose of sustaining the Ombudsmans
findings, it would have been necessary that the alleged conspiracy or collusion be established
by independent, competent and substantial evidence. Since the records are bereft of this
evidence, what remains is only petitioners verification of Mr. Geocadins false DTR. With this as
sole basis, petitioner can be held administratively liable only for simple neglect of duty --- not
for dishonesty, for falsification of official document, or for causing undue injury to the
government.

Simple neglect of duty is defined as the failure to give proper attention to a task expected
from an employee resulting from either carelessness or indifference.[31] Had petitioner
performed the task required of him, that is, to monitor the employees attendance, he would
have discovered that indeed Mr. Geocadin was dividing his time between PPA and
Napocor. Though not required to know every detail of his subordinates whereabouts, petitioner
should have implemented measures to make sure that the government was not defrauded. As
he was required to sign Mr. Geocadins DTR, petitioner should have verified the truthfulness of
the entries therein.Indeed, petitioner neglected his duty which caused prejudice to the
government in that Mr. Geocadin was paid twice for his services. These facts, taken together,
are sufficient to make petitioner liable for simple neglect of duty, but insufficient to make him
answer for charges of dishonesty and falsification of document.

This is not the first time that we hold an immediate superior administratively liable for
neglect of duty for obvious lack of care in verifying his subordinates DTR. In Re: Anonymous
Complaint Against Ms. Rowena Marinduque, Assigned at PHILJA Devt
[32] [33]
Center, Tagaytay City and Amane v. Atty. Mendoza-Arce, the Court found the Branch Clerk
of Court, the Presiding Judge and the OIC Philja Director liable because of their acts of tolerating
their subordinates absences. In the said cases, which involved court employees, the Court
concluded that there was a relaxation and too much leniency in the implementation of the rules
on attendance which thus resulted in the unauthorized absences of employees not being
reflected in their DTRs. The Court said:

We find the inclination of the respondent judge to leniency in the

administrative supervision of his employees an undesirable trait. Oftentimes, such
leniency provides the court employees the opportunity to commit minor
transgressions of the laws and slight breaches of official duty ultimately leading to
vicious delinquencies. The respondent judge should constantly keep a watchful eye
on the conduct of his employees. He should realize that big start small. His constant
scrutiny of the behavior of his employees would deter any abuse on the part of the
latter in the exercise of their duties. Then, his subordinates would know that any
misdemeanor will not remain unchecked.[34]

Applying the aforesaid pronouncement by analogy, petitioner in the instant case was
indeed lenient in the implementation of the rules on attendance. Mr. Geocadin took advantage
of this leniency by taking unauthorized undertime with PPA in order to attend to his duties with
Napocor. Since such act remained unchecked for almost seven (7) months, Mr. Geocadin was
not deterred from continuing his unlawful act, to the prejudice of the government and the
taxpayers.

It must be remembered that public service requires integrity and discipline. For this
reason, public servants must exhibit at all times the highest sense of honesty and dedication to
duty. By the very nature of their duties and responsibilities, government employees must
faithfully adhere to, hold sacred and render inviolate the constitutional principle that a public
office is a public trust; that all public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty and efficiency.[35]

As to the proper penalty imposable, simple neglect of duty is classified as a less grave
offense punishable by suspension without pay for one (1) month and one (1) day to six (6)
months.[36] The circumstances surrounding the instant case, considering that it appears to be
petitioners first offense, warrant the imposition of suspension without pay for one (1) month
and one (1) day.

WHEREFORE, the Decision of the Court of Appeals dated April 26, 2001 and its Resolution
dated December 21, 2001 in CA-G.R. SP No. 57397 are hereby MODIFIED. We find
petitioner GUILTY of Simple Neglect of Duty instead of Dishonesty, Falsification of Official
Documents, Causing Undue Injury to the Government, and is meted the penalty of suspension
without pay for one (1) month and one (1) day, instead of dismissal from service, forfeiture of
all benefits and perpetual disqualification from public office.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 83589 March 13, 1991

RAMON FAROLAN as ACTING COMMISSIONER OF CUSTOMS, and GUILLERMO PARAYNO, as

CHIEF OF CUSTOM INTELLIGENCE and INVESTIGATION DIVISION, petitioners,
vs.
SOLMAC MARKETING CORPORATION and COURT OF APPEALS, respondents.

Dakila F. Castro & Associates for private respondent.

SARMIENTO, J.:

This petition for review on certiorari, instituted by the Solicitor General on behalf of the public
officers-petitioners, seek the nullification and setting aside of the Resolution1 dated May 25,
1988 of the Court of Appeals in CA-G.R. No. SP-10509, entitled "Solmac Marketing Corporation
vs. Ramon Farolan, Acting Commissioner of Customs, and Guillermo Parayno, Chief of Customs
Intelligence and Investigation Division," which adjudged these public officers to pay solidarily
and in their private personal capacities respondent Solmac Marketing Corporation temperate
damages in the sum of P100,000.00, exemplary damages in the sum of P50,000.00, and
P25,000.00, as attorney's fees and expenses of litigation. This challenged resolution of the
respondent court modified its decision2 of July 27, 1987 by reducing into halves the original
awards of P100,000.00 and P50,000.00 for exemplary damages and attorney's fees and litigation
expenses, respectively, keeping intact the original grant of P100,000.00 in the concept of
temperate damages. (Strangely, the first name of petitioner Farolan stated in the assailed
resolution, as well as in the decision, of the respondent court is "Damian" when it should be
"Ramon", his correct given name. Strictly speaking, petitioner Ramon Farolan could not be held
liable under these decision and resolution for he is not the one adjudged to pay the huge
damages but a different person. Nonetheless, that is of no moment now considering the
disposition of this ponencia.)

The relevant facts, as culled from the records, are as follows:

At the time of the commission of the acts complained of by the private respondent, which was
the subject of the latter's petition for mandamus and injunction filed with the Regional Trial
Court (RTC) of Manila in Civil Case No. 84-23537, petitioner Ramon Farolan was then the Acting
Commissioner of Customs while petitioner Guillermo Parayno was then the Acting Chief,
Customs Intelligence and Investigation Division. They were thus sued in their official capacities
as officers in the government as clearly indicated in the title of the case in the lower courts and
even here in this Court. Nevertheless, they were both held personally liable for the awarded
damages "(s)ince the detention of the goods by the defendants (petitioners herein) was
irregular and devoid of legal basis, hence, not done in the regular performance of official duty .
. . ."3

However, as adverted to at the outset, in the dispositive portion of the challenged resolution,
the one held personally liable is a "Damian Farolan" and not the petitioner, Ramon Farolan. Also
as earlier mentioned, we will ignore that gross error.

Private respondent Solmac Marketing Corporation is a corporation organized and existing under
the laws of the Philippines. It was the assignee, transferee, and owner of an importation of
Clojus Recycling Plastic Products of 202,204 kilograms of what is technically known as
polypropylene film, valued at US$69,250.05.

Polypropylene is a substance resembling polyethelyne which is one of a group of partially

crystalline lightweight thermoplastics used chiefly in making fibers, films, and molded and
extruded products.4

Without defect, polypropylene film is sold at a much higher price as prime quality film. Once
rejected as defective due to blemishes, discoloration, defective winding, holes, etc.,
polypropylene film is sold at a relatively cheap price without guarantee or return, and the buyer
takes the risk as to whether he can recover an average 30% to 50% usable matter.5 This latter
kind of polypropylene is known as OPP film waste/scrap and this is what respondent SOLMAC
claimed the Clojus shipment to be.

The subject importation, consisting of seventeen (17) containers, arrived in December, 1981.
Upon application for entry, the Bureau of Customs asked respondent SOLMAC for its authority
from any government agency to import the goods described in the bill of lading. Respondent
SOLMAC presented a Board of Investment (BOI) authority for polypropylene film scrap.
However, upon examination of the shipment by the National Institute of Science and
Technology (NIST), it turned out that the fibers of the importation were oriented in such a way
that the materials were stronger than OPP film scrap.6 In other words, the Clojus shipment was
not OPP film scrap, as declared by the assignee respondent SOLMAC to the Bureau of Customs
and BOI Governor Lilia R. Bautista, but oriented polypropylene the importation of which is
restricted, if not prohibited, under Letter of Instructions (LOI) No. 658-B. Specifically, Sections 1
and 2 of LOI No. 658-B provide that:

xxx xxx xxx

 1. The importation of cellophane shall be allowed only for quantities and types of
cellophane that cannot be produced by Philippine Cellophane Film Corporation. The
Board of Investments shall issue guidelines regulating such importations.

2. The Collector of Customs shall see to the apprehension of all illegal importations of
cellophane and oriented polypropylene (OPP) and the dumping of imported stock lots of
cellophane and OPP.

xxx xxx xxx

Considering that the shipment was different from what had been authorized by the BOI and by
law, petitioners Parayno and Farolan withheld the release of the subject importation.

On June 7, 1982, petitioner Parayno, then Chief of Customs Intelligence and Investigation
Division, wrote the BOI asking for the latter's advice on whether or no t the subject importation
may be released7 A series of exchange of correspondence between the BOI and the Bureau of
Customs, on one hand, and between the late Dakila Castro, counsel for the private respondent,
and the BOI and the Bureau of Customs, on the other, ensued, to wit:

xxx xxx xxx

4. In a letter dated August 17, 1982, the BOI agreed that the subject imports may be
released but that holes may be drilled on them by the Bureau of Customs prior to their
release.

5. On January 20, 1983, (the late) Atty. Dakila Castro, (then) counsel of private respondent
wrote to petitioner Commissioner Farolan of Customs asking for the release of the
importation. The importation was not released, however, on the ground that holes had
to be drilled on them first.

6. Atty. Dakila Castro then wrote a letter dated October 6, 1983, to BOI Governor
Hermenigildo Zayco stressing the reasons why the subject importation should be released
without drilling of holes.

7. On November 8, 1983, BOI Governor H. Zayco wrote a letter to the Bureau of Customs
stating that the subject goods may be released without drilling of holes inasmuch as the
goods arrived prior to the endorsement on August 17, 1982 to the drilling of holes on all
importations of waste/scrap films.

8. On February 1, 1984, petitioner Commissioner Farolan wrote the BOI requesting for
definite guidelines regarding the disposition of importations of Oriented Polypropylene
(OPP) and Polypropylene (PP) then being held at the Bureau of Customs.
 9. On March 12, 1984, Minister Roberto Ongpin of Trade, the BOI Chairman, wrote his
reply to petitioner Farolan . . . .8 (This reply of Minister Ongpin is copied in full infra.)

On March 26, 1984, respondent Solmac filed the action for mandamus and injunction with the
RTC as above mentioned. It prayed for the unconditional release of the subject importation. It
also prayed for actual damages, exemplary damages, and attorney's fees. As prayed for, the trial
court issued a writ of preliminary injunction.

After hearing on the merits, the RTC rendered a decision on February 5, 1985, the dispositive
portion of which reads as follows:

Premises considered, judgment is hereby rendered ordering defendants to release the

subject importation immediately without drilling of holes, subject only to the normal
requirements of the customs processing for such release to be done with utmost dispatch
as time is of the essence; and the preliminary injunction hereto issued is hereby made
permanent until actual physical release of the merchandise and without pronouncement
as to costs.

SO ORDERED.9

From the decision of the trial court, Solmac, the plaintiff below and the private respondent
herein, appealed to the Court of Appeals only insofar as to the denial of the award of damages
is concerned. On the other hand, the petitioners did not appeal from this decision. They did not
see any need to appeal because as far as they were concerned, they had already complied with
their duty. They had already ordered the release of the importation "without drilling of holes,"
as in fact it was so released, in compliance with the advice to effect such immediate release
contained in a letter of BOI dated October 9, 1984, to Commissioner Farolan. Thus, to stress,
even before the RTC rendered its decision on February 5, 1984, the Clojus shipment of OPP was
released10 to the private respondent in its capacity as assignee of the same. Be that it may, the
private respondent filed its appeal demanding that the petitioners be held, in their personal and
private capacities, liable for damages despite the finding of lack of bad faith on the part of the
public officers.

After due proceeding, the Court of Appeals rendered a decision11 on July 27, 1987, the
dispositive portion which reads as follows:

WHEREFORE, the appealed judgment is modified by ordering the defendants Ramon

Farolan and Guillermo Parayno solidarity, in their personal capacity, to pay the plaintiff
temperate damages in the sum of P100,000, exemplary damages in the sum of P100,000
and P50,000 as attorney's fees and expenses of litigation. Costs against the defendants.

SO ORDERED.
On August 14, 1987, the petitioners filed a motion for reconsideration of the decision of the
Court of Appeals.

On May 25, 1988, the Court of Appeals issued its resolution modifying the award of damages,
to wit: temperate damages in the sum of P100,000,00, exemplary damages in the sum of
P50,000.00, and P25,000.00 as attorney's fees and expenses of litigation. The respondent court
explained the reduction of the awards for exemplary damages and attorney's fees and expenses
of litigation in this wise:

3. In our decision of July 27, 1987, We awarded to plaintiff-appellant Pl00,000 as

temperate damages, Pl00,000.00 as exemplary damages, and P50,000.00 as attorney's
fees and expenses of litigation. Under Art. 2233 of the Civil Code, recovery of exemplary
damages is not a matter of right but depends upon the discretion of the court. Under
Article 2208 of the Civil Code, attorney's fees and expenses of litigation must always be
reasonable. In view of these provisions of the law, and since the award of temperate
damages is only P100,000.00, the amount of exemplary damages may not be at par as
temperate damages. An award of P50,000.00, as exemplary damages may already serve
the purpose, i.e., as an example for the public good. Likewise, the attorney's fees and
expenses of litigation have to be reduced to 25% of the amount of temperate damages,
or P25,000.00, if the same have to be reasonable. The reduction in the amount of
exemplary damages, and attorney's fees and expenses of litigation would be in accord
with justice and fairness.12

The petitioners now come to this Court, again by the Solicitor General, assigning the following
errors allegedly committed by the respondent court:

The Court of Appeals erred in disregarding the finding of the trial court that the defense
of good faith of petitioners (defendants) cannot be discredited.

II

The Court of Appeals erred in adjudging petitioners liable to pay temperate damages,
exemplary damages, attorney's fees and expenses of litigation.13

These two issues boil down to a single question, i.e., whether or not the petitioners acted in
good faith in not immediately releasing the questioned importation, or, simply, can they be held
liable, in their personal and private capacities, for damages to the private respondent.

We rule for the petitioners.

The respondent court committed a reversible error in overruling the trial court's finding that:
 . . . with reference to the claim of plaintiff to damages, actual and exemplary, and
attorney's fees, the Court finds it difficult to discredit or disregard totally the defendants'
defense of good faith premised on the excuse that they were all the time awaiting
clarification of the Board of Investments on the matter.14

We hold that this finding of the trial court is correct for good faith is always presumed and it is
upon him who alleges the contrary that the burden of proof lies.15 In Abando v. Lozada,16 we
defined good faith as "refer[ring] to a state of the mind which is manifested by the acts of the
individual concerned. It consists of the honest intention to abstain from taking an
unconscionable and unscrupulous advantage of another. It is the opposite of fraud, and its
absence should be established by convincing evidence."

We had reviewed the evidence on record carefully and we did not see any clear and convincing
proof showing the alleged bad faith of the petitioners. On the contrary, the record is replete
with evidence bolstering the petitioners' claim of good faith. First, there was the report of the
National Institute of Science and Technology (NIST) dated January 25, 1982 that, contrary to
what the respondent claimed, the subject importation was not OPP film scraps but oriented
polypropylene, a plastic product of stronger material, whose importation to the Philippines was
restricted, if not prohibited, under LOI
17
658-B. It was on the strength of this finding that the petitioners withheld the release of the
subject importation for being contrary to law. Second, the petitioners testified that, on many
occasions, the Bureau of Customs sought the advice of the BOI on whether the subject
importation might be released.18 Third, petitioner Parayno also testified during the trial that up
to that time (of the trial) there was no clear-cut policy on the part of the BOI regarding the entry
into the Philippines of oriented polypropylene (OPP), as the letters of BOI Governors Tordesillas
and Zayco of November 8, 1983 and September 24, 1982, respectively, ordering the release of
the subject importation did not clarify the BOI policy on the matter. He then testified on the
letter of the BOI Chairman Roberto Ongpin dated March 12, 1984, which states in full:

Thank you for your letter of 1 February 1984, on the subject of various importations of
Oriented Polypropylene (OPP) and Polypropylene (PP) withheld by Customs and the
confusion over the disposition of such imports.

I have discussed the matter with Vice-Chairman Tordesillas and Governor Zayco of the
Board of Investments and the following is their explanation:

1. On 22 June 1982, the BOI ruled that importation of OPP/PP film scraps intended for
recycling or repelletizing did not fall within the purview of LOI 658-B.

2. On 17 August l982, the BOI agreed that holes could be drilled on subject film imports
to prevent their use for other purposes.
 3. For importations authorized prior to 22 June 1982, the drilling of holes should depend
on purpose for which the importations was approved by the BOI that is, for direct
packaging use or for recycling/repelletizing into raw material. The exemption from drilling
of holes on Solmac Marketing's importation under Certificates of Authority issued on 1
April 1982 and 5 May 1982 and on Clojus' importation authorized in 1982 were endorsed
by the BOI on the premise that these were not intended for recycling/repelletizing.

Should your office have any doubts as to the authorized intended use of any imported
lots of OPP/PP film scraps that you have confiscated, we have no objection to the drilling
of holes to ensure that these are indeed recycled.

I have requested Governor Zayco to contact your office in order to offer any further
assistance which you may require.19

It can be seen from all the foregoing that even the highest officers (Chairman Ongpin, Vice-
Chairman Tordesillas, and Governor Zayco) of the BOI themselves were not in agreement as to
what proper course to take on the subject of the various importations of Oriented
Polypropylene (OPP) and Polypropylene (PP) withheld by the Bureau of Customs. The conflicting
recommendations of the BOI on this score prompted the petitioners to seek final clarification
from the former with regard to its policy on these importations. This resulted in the inevitable
delay in the release of the Clojus shipment, one of the several of such importations. The
confusion over the disposition of this particular importation obviates bad faith. Thus the trial
court's finding that the petitioners acted in good faith in not immediately releasing the Clojus
shipment pending a definitive policy of the BOI on this matter is correct. It is supported by
substantial evidence on record, independent of the presumption of good faith, which as stated
earlier, was not successfully rebutted.

When a public officer takes his oath of office, he binds himself to perform the duties of his office
faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the
public. Thus, in the discharge of his duties, he is to use that prudence, caution, and attention
which careful men use in the management of their affairs. In the case at bar, prudence dictated
that petitioners first obtain from the BOI the latter's definite guidelines regarding the disposition
of the various importations of oriented polypropylene (OPP) and polypropylene (PP) then being
withheld at the Bureau of Customs. These cellophane/film products were competing with locally
manufactured polypropylene and oriented polypropylene as raw materials which were then
already sufficient to meet local demands, hence, their importation was restricted, if not
prohibited under LOI 658-B. Consequently, the petitioners can not be said to have acted in bad
faith in not immediately releasing the import goods without first obtaining the necessary
clarificatory guidelines from the BOI. As public officers, the petitioners had the duty to see to it
that the law they were tasked to implement, i.e., LOI 658-B, was faithfully complied with.

But even granting that the petitioners committed a mistake in withholding the release of the
subject importation because indeed it was composed of OPP film scraps,20 contrary to the
evidence submitted by the National Institute of Science and Technology that the same was pure
oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are not
hampered in the performance of their duties or in making decisions for fear of personal liability
for damages due to honest mistake.1âwphi1 Whatever damage they may have caused as a
result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque
injuria. Mistakes concededly committed by public officers are not actionable absent any clear
showing that they were motivated by malice or gross negligence amounting to bad faith.21 After
all, "even under the law of public officers, the acts of the petitioners are protected by the
presumption of good faith.22

In the same vein, the presumption, disputable though it may be, that an official duty has been
regularly performed23applies in favor of the petitioners. Omnia praesumuntur rite et solemniter
esse acta. (All things are presumed to be correctly and solemnly done.) It was private
respondent's burden to overcome this juris tantum presumption. We are not persuaded that it
has been able to do so.

WHEREFORE, the petition is hereby GRANTED, the assailed Resolution of the respondent court,
in CA-G.R. SP No. 10509, dated May 25, 1988, is SET ASIDE and ANNULLED. No costs.

SO ORDERED.
 FIRST DIVISION

G.R. No. 145368 April 12, 2002

SALVADOR H. LAUREL, petitioner,

vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent.

KAPUNAN, J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223
"constituting a Committee for the preparation of the National Centennial Celebration in 1998."
The Committee was mandated "to take charge of the nationwide preparations for the National
Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."1

Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconstituting the
Committee for the preparation of the National Centennial Celebrations in 1988." It renamed the
Committee as the "National Centennial Commission." Appointed to chair the reconstituted
Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal and
Corazon C. Aquino were named Honorary Chairpersons.2

Characterized as an "i body," the existence of the Commission "shall terminate upon the
completion of all activities related to the Centennial Celebrations."3 Like its predecessor
Committee, the Commission was tasked to "take charge of the nationwide preparations for the
National Celebration of the Philippine Centennial of the Declaration of Philippine Independence
and the Inauguration of the Malolos Congress."

Per Section 6 of the Executive Order, the Commission was also charged with the responsibility
to "prepare, for approval of the President, a Comprehensive Plan for the Centennial
Celebrations within six (6) months from the effectivity of" the Executive Order.

E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff support
by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts, and
the National Historical Institute. Said Secretariat shall be headed by a full time Executive
Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the president’s Contingent Fund, in an amount to be
 recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation (Expocorp)
was created.4Petitioner was among the nine (9) Expocorp incorporators, who were also its first
nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer.

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate
denouncing alleged anomalies in the construction and operation of the Centennial Exposition
Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Coseteng’s privilege speech was referred to the Committee on Accountability of Public Officers
and Investigation (The Blue Ribbon Committee) and several other Senate Committees for
investigation.

On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an
ad hoc and independent citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its component activities. Former
Senator Rene A.V. Saguisag was appointed to chair the Committee.

On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate
its Committee Final Report No. 30 dated February 26, 1999. Among the Committee’s
recommendations was "the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair
of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of
centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest
bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring)
even in the absence of a valid contract that has caused material injury to government and for
participating in the scheme to preclude audit by COA of the funds infused by the government
for the implementation of the said contracts all in violation… of the anti-graft law."5

Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended
"the further investigation by the Ombudsman, and indictment, in proper cases of," among
others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a)
in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.

The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred
to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27,
2000, the Bureau issued its Evaluation Report, recommending:

1. that a formal complaint be filed and preliminary investigation be conducted before the
Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against
former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President
Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of
R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations;
 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.6

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and
Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those
of his witnesses.

On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss
questioning the jurisdiction of said office.

In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to dismiss.

On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the
motion was denied in an Order dated October 5, 2000.

On October 25, 2000, petitioner filed the present petition for certiorari.

On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution
finding "probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA
before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in
relation to Republic Act No. 1594." The resolution also directed that an information for violation
of the said law be filed against Laurel and Peña. Ombudsman Aniano A. Desierto approved the
resolution with respect to Laurel but dismissed the charge against Peña.

In a Resolution dated September 24, 2001, the Court issued a temporary restraining order,
commanding respondents to desist from filing any information before the Sandiganbayan or any
court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act.

On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral
argument.

Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer
because:

A.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE

FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND
CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A
GOVERNMENT-OWNED OR CONTROLLED CORPORATION.

B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.

C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A "PUBLIC
OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7

In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs. Sandiganbayan,9 where
it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by the
Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioner’s position was
purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the
Ombudsman, would have no jurisdiction over him.

This last contention is easily dismissed. In the Court’s decision in Uy, we held that "it is the
prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s
against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers
only in cases cognizable by the Sandiganbayan."

In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have control
over prosecution of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling
within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act
Providing for the Functional and Structural Organization of the Office of the Ombudsman,
and for other purposes") which vests upon the Ombudsman "primary jurisdiction over
cases cognizable by the Sandiganbayan…" And this is further buttressed by Section 11 (4a)
of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the
power to "conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan’s
jurisdiction clearly serve to limit the Ombudsman’s and Special Prosecutor’s authority to
cases cognizable by the Sandiganbayan. [Emphasis in the original.]

The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the
Ombudsman in the same case, the Court set aside the foregoing pronouncement in its
Resolution dated March 20, 2001. The Court explained the rationale for this reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is plenary
and unqualified. It pertains to any act or omission of any public officer or employee when
such act or omission appears to be illegal, unjust, improper or inefficient. The law does
not make a distinction between cases cognizable by the Sandiganbayan and those
cognizable by regular courts. It has been held that the clause "any illegal act or omission
of any public official" is broad enough to embrace any crime committed by a public officer
or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in

Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable
by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any investigatory agency of the
government, the investigation of such cases." The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his primary jurisdiction
over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his
duty to investigate and prosecute other offenses committed by public officers and
employees. Indeed, it must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and
non-feasance committed by public officers and employees during their tenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with
the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of
the Special Prosecutor is merely a component of the Office of the Ombudsman and may
only act under the supervision and control and upon authority of the Ombudsman. Its
power to conduct preliminary investigation and to prosecute is limited to criminal cases
within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to
confine the investigatory and prosecutory power of the Ombudsman to these types of
cases. The Ombudsman is mandated by law to act on all complaints against officers and
employees of the government and to enforce their administrative, civil and criminal
liability in every case where the evidence warrants. To carry out this duty, the law allows
him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or
lawyer in the government service to act as special investigator or prosecutor to assist in
the investigation and prosecution of certain cases. Those designated or deputized to
assist him work under his supervision and control. The law likewise allows him to direct
the Special Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in
accordance with Section 11 (4c) of RA 6770.

The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active and
 effective agent of the people in ensuring accountability in public office. A review of the
development of our Ombudsman law reveals this intent. [Emphasis in the original.]

Having disposed of this contention, we proceed to the principal grounds upon which petitioner
relies. We first address the argument that petitioner, as Chair of the NCC, was not a public
officer.

The Constitution10 describes the Ombudsman and his Deputies as "protectors of the people,"
who "shall act promptly on complaints filed in any form or manner against public officials or
employees of the government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations." Among the awesome powers, functions, and
duties vested by the Constitution11 upon the Office of the Ombudsman is to "[i]nvestigate… any
act or omission of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient."

The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise
known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law respectively provide:

SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people shall
act promptly on complaints file in any form or manner against officers or employees of
the Government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government, the investigation
of such cases;

x x x.

The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra:

SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of malfeasance,
misfeasance and non-feasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-
feasance by a public officer or employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations.12

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers
are. A definition of public officers cited in jurisprudence13 is that provided by Mechem, a
recognized authority on the subject:

A public office is the right, authority and duty, created and conferred by law, by which,
for a given period, either fixed by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public. The individual so invested is a public
officer.14

The characteristics of a public office, according to Mechem, include the delegation of sovereign
functions, its creation by law and not by contract, an oath, salary, continuance of the position,
scope of duties, and the designation of the position as an office.15

Petitioner submits that some of these characteristics are not present in the position of NCC
Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not
receive any compensation; and (3) continuance, the tenure of the NCC being temporary.

Mechem describes the delegation to the individual of some of the sovereign functions of
government as "[t]he most important characteristic" in determining whether a position is a
public office or not.

The most important characteristic which distinguishes an office from an employment or

contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him for
the benefit of the public; – that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the public
benefit. Unless the powers conferred are of this nature, the individual is not a public
officer.16

Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly,
the law did not delegate upon the NCC functions that can be described as legislative or judicial.
May the functions of the NCC then be described as executive?

We hold that the NCC performs executive functions. The executive power "is generally defined
as the power to enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."17 The executive function, therefore,
concerns the implementation of the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and
Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve,
promote, and popularize the nation’s historical and cultural heritage and resources, as
well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the
National Centennial Celebrations in 1998:

Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the
centennial presents an important vehicle for fostering nationhood and a strong sense of
Filipino identity;

Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;

Whereas, the success of the Centennial Celebrations may be insured only through long-
range planning and continuous developmental programming;

Whereas, the active participation of the private sector in all areas of special expertise and
capability, particularly in communication and information dissemination, is necessary for
long-range planning and continuous developmental programming;

Whereas, there is a need to create a body which shall initiate and undertake the primary
task of harnessing the multisectoral components from the business, cultural, and business
sectors to serve as effective instruments from the launching and overseeing of this long-
term project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998,
cited the "need to strengthen the said Committee to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider participation from the
government and non-government or private organizations." It also referred to the "need to
rationalize the relevance of historical links with other countries."

The NCC was precisely created to execute the foregoing policies and objectives, to carry them
into effect. Thus, the Commission was vested with the following functions:

(a) To undertake the overall study, conceptualization, formulation and implementation of

programs and projects on the utilization of culture, arts, literature and media as vehicles
for history, economic endeavors, and reinvigorating the spirit of national unity and sense
of accomplishment in every Filipino in the context of the Centennial Celebrations. In this
 regard, it shall include a Philippine National Exposition ’98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major venues;

(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;

(c) To serve as the clearing house for the preparation and dissemination of all information
about the plans and events for the Centennial Celebrations;

(d) To constitute working groups which shall undertake the implementation of the
programs and projects;

(e) To prioritize the refurbishment of historical sites and structures nationwide. In this
regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer,
build-operate-transfer, and similar arrangements) to ensure the preservation and
maintenance of the historical sites and structures;

(f) To call upon any government agency or instrumentality and corporation, and to invite
private individuals and organizations to assist it in the performance of its tasks; and,

(g) Submit regular reports to the President on the plans, programs, projects, activities as
well as the status of the preparations for the Celebration.18

It bears noting the President, upon whom the executive power is vested,19 created the NCC
by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2
describes the nature of executive orders:

SEC. 2. Executive Orders. – Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the country’s economic development, especially
in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court:

MR. JUSTICE REYNATO S. PUNO:

And in addition to that expounded by Former President Ramos, don’t you agree
that the task of the centennial commission was also to focus on the long term over
all socio economic development of the zone and Central Luzon by attracting
investors in the area because of the eruption of Mt. Pinatubo.

FORMER VICE PRESIDENT SALVADOR H. LAUREL:

 I am glad Your Honor touched on that because that is something I wanted to touch
on by lack of material time I could not but that is a very important point. When I
was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño
but President Ramos said Mr. Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic]
economic recovery in that area by putting this Expo in Clark Field and so it was done
I agreed and Your Honor if I may also mention we wanted to generate employment
aside from attracting business investments and employment. And the Estrada
administration decided to junk this project there 48, 40 thousand people who lost
job, they were employed in Expo. And our target was to provide 75 thousand jobs.
It would have really calibrated, accelerated the development of Central Luzon.
Now, I think they are going back to that because they had the airport and there are
plan to revive the Expo site into key park which was the original plan.

There can hardly be any dispute that the promotion of industrialization and full employment is
a fundamental state policy.20

Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by a
municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner
argues that the "holding of a nationwide celebration which marked the nation’s 100th birthday
may be likened to a national fiesta which involved only the exercise of the national
government’s proprietary function."22 In Torio, we held:

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply
gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose
upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a
religious or historical event of the town is in essence an act for the special benefit of the
community and not for the general welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as claimed, was not to secure profit
or gain but merely to provide entertainment to the town inhabitants is not a conclusive
test. For instance, the maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from the maintenance of public
schools, jails, and the like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true
nature of an undertaking or function of a municipality; the surrounding circumstances of
a particular case are to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government in essence,
otherwise, the function becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in the celebration of a town fiesta.

Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court
cautioned that "there can be no hard and fast rule for purposes of determining the true nature
of an undertaking or function of a municipality; the surrounding circumstances of a particular
case are to be considered and will be decisive." Thus, in footnote 15 of Torio, the Court, citing
an American case, illustrated how the "surrounding circumstances plus the political, social, and
cultural backgrounds" could produce a conclusion different from that in Torio:

We came across an interesting case which shows that surrounding circumstances plus the
political, social, and cultural backgrounds may have a decisive bearing on this question.
The case of Pope v. City of New Haven, et al. was an action to recover damages for
personal injuries caused during a Fourth of July fireworks display resulting in the death of
a bystander alleged to have been caused by defendants’ negligence. The defendants
demurred to the complaint invoking the defense that the city was engaged in the
performance of a public governmental duty from which it received no pecuniary benefit
and for negligence in the performance of which no statutory liability is imposed. This
demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to
amend his complaint to allege that the celebration was for the corporate advantage of
the city. This was denied. In affirming the order, the Supreme Court of Errors of
Connecticut held inter alia:

Municipal corporations are exempt from liability for the negligent performance of purely
public governmental duties, unless made liable by statute….

A municipality corporation, which under permissive authority of its charter or of statute,

conducted a public Fourth of July celebration, including a display of fireworks, and sent
up a bomb intended to explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance of a governmental
duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the different
departments of the government recognize, and have recognized since the government
was established, July 4th as a national holiday. Throughout the country it has been
recognized and celebrated as such. These celebrations, calculated to entertain and
instruct the people generally and to arouse and stimulate patriotic sentiments and love
of country, frequently take the form of literary exercises consisting of patriotic speeches
and the reading of the Constitution, accompanied by a musical program including
patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That
such celebrations are of advantage to the general public and their promotion a proper
subject of legislation can hardly be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial
Celebrations was meant to commemorate the birth of our nation after centuries of struggle
against our former colonial master, to memorialize the liberation of our people from oppression
by a foreign power. 1998 marked 100 years of independence and sovereignty as one united
nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our
patriotism. As A.O. 223 put it, it was a "vehicle for fostering nationhood and a strong sense of
Filipino identity," an opportunity to "showcase Filipino heritage and thereby strengthen Filipino
values." The significance of the Celebrations could not have been lost on petitioner, who
remarked during the hearing:

Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle
the love for freedom, love for country, that is the over-all goal that has to make everybody
feel proud that he is a Filipino, proud of our history, proud of what our forefather did in
their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as
its Chair, is a public officer.

That petitioner allegedly did not receive any compensation during his tenure is of little
consequence. A salary is a usual but not a necessary criterion for determining the nature of the
position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where
a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is
supposed to be accepted merely for the public good.23 Hence, the office of petitioner as NCC
Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of
profit, i.e., one to which salary, compensation or fees are attached.24 But it is a public office,
nonetheless.

Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make
said commission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an office.
"But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules
prescribed by the government and not by contract, which an individual is appointed by
government to perform, who enters on the duties pertaining to his station without any
contract defining them, if those duties continue though the person be changed, -- it seems
very difficult to distinguish such a charge or employment from an office of the person who
performs the duties from an officer."

At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present "it can make no difference," says
Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the
 office expires as soon as the one act is done, or is to be held for years or during good
behavior."25

Our conclusion that petitioner is a public officer finds support in In Re Corliss.26 There the
Supreme Court of Rhode Island ruled that the office of Commissioner of the United States
Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United
States President and Vice-President. (Under Article II of the United States Constitution, a person
holding an office of trust or profit under the United States is disqualified from being appointed
an elector.)

x x x. We think a Commissioner of the United States Centennial Commission holds an

office of trust under the United States, and that he is therefore disqualified for the office
of elector of President and Vice-President of the United States.

The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign arts,
products, and manufactures, "under the auspices of the government of the United
States," and for the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, "whose functions shall
continue until close of the exhibition," and "whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition." Under the statute the
commissioners are appointed by the President of the United States, on the nomination of
the governor of the States and Territories respectively. Various duties were imposed upon
the commission, and under the statute provision was to be made for it to have exclusive
control of the exhibit before the President should announce, by proclamation, the date
and place of opening and holding the exhibition. By an act of Congress approved June 1st,
1872, the duties and functions of the commission were further increased and defined.
That act created a corporation, called "The Centennial Board of Finance," to cooperate
with the commission and to raise and disburse the funds. It was to be organized under
the direction of the commission. The seventh section of the act provides "that the grounds
for exhibition shall be prepared and the buildings erected by the corporation, in
accordance with plans which shall have been adopted by the United States Centennial
Commission; and the rules and regulations of said corporation, governing rates for
entrance and admission fees, or otherwise affecting the rights, privileges, or interests of
the exhibitors, or of the public, shall be fixed and established by the United States
Centennial Commission; and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States Centennial Commission, and said
commission shall have power to control, change, or revoke all such grants, and shall
appoint all judges and examiners and award all premiums." The tenth section of the act
provides that "it shall be the duty of the United States Centennial Commission to
supervise the closing up of the affairs of said corporation, to audit its accounts, and submit
 in a report to the President of the United States the financial results of the centennial
exhibition."

It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they were
not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such duties
and exercising such functions, in pursuance of statutory direction and authority, are not
to be regarded as mere employees, agents, or committee men, but that they are, properly
speaking, officers, and that the places which they hold are offices. It appears, moreover,
that they were originally regarded as officers by Congress; for the act under which they
were appointed declares, section 7, that "no compensation for services shall be paid to
the commissioners or other officers, provided for in this act, from the treasury of the
United States." The only other officers provided for were the "alternates" appointed to
serve as commissioners when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a
public office, we need no longer delve at length on the issue of whether Expocorp is a private or
a public corporation. Even assuming that Expocorp is a private corporation, petitioner’s position
as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC.
Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers
and functions as NCC Chair.27

Finally, it is contended that since petitioner supposedly did not receive any compensation for
his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No.
3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the
Ombudsman.

Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads:

SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows:

SEC. 2. Definition of terms. – As used in this Act, the term –

xxx

(b) "Public officer" includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government as defined in the preceding
paragraph. [Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly limited
to the application of R.A. No. 3019. Said definition does not apply for purposes of determining
the Ombudsman’s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989.

Moreover, the question of whether petitioner is a public officer under the Anti-Graft and
Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters
that are best resolved at trial.

To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not
restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of several laws that define
"public officers." Article 203 of the Revised Penal Code, for example, provides that a public
officer is:

x x x any person who, by direct provision of law, popular election or appointment by

competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29 on the other
hand, states:

Officer – as distinguished from "clerk" or "employee", refers to a person whose duties not
being of a clerical or manual nature, involves the exercise of discretion in the performance
of the functions of the government. When used with reference to a person having
authority to do a particular act or perform a particular person in the exercise of
governmental power, "officer" includes any government employee, agent or body having
authority to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees), one may be considered a "public official"
whether or not one receives compensation, thus:
 "Public Officials" include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
"compensation," which is not defined by said law, has many meanings.

Under particular circumstances, "compensation" has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and
wages.30

How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to be
interpreted?

Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not
receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or
some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled
to per diems and compensation.31 Would such fact bear any significance?

Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the
trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Court’s
Resolution dated September 24, 2001 is hereby LIFTED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 10-9-15-SC February 12, 2013

RE: REQUEST OF (RET.) CHIEF JUSTICE ARTEMIO V. PANGANIBAN FOR RECOMPUTATION OF

HIS CREDITABLE SERVICE FOR THE PURPOSE OF RECOMPUTING HIS RETIREMENT BENEFITS.

RESOLUTION

PERLAS-BERNABE, J.:

The Court is asked to pass upon the request of former Chief Justice Artemio V. Panganiban (CJ
Panganiban) to include as creditable government service the period from January 1962 to
December 1965 when he served the Department of Education (DepEd), its Secretary, and the
Board of National Education (BNE) to enable him to meet the present service requirement of
fifteen (15) years for entitlement to retirement benefits.

When CJ Panganiban reached the compulsory age of retirement on

December 7, 2006, he was credited with eleven (11) years, one (1) month and twenty-seven (27)
days or 11.15844 years of government service. The Office of Administrative Services (OAS) did
not include in the computation his 4-year service as Legal Counsel to the DepEd and its then
Secretary, Alejandro R. Roces (Former Education Secretary Roces), and as Consultant to the BNE
in a concurrent capacity, from January 1962 to December 1965, on the ground that consultancy
"is not considered government service pursuant to Rule XI (Contract of Services/Job Orders) of
the Omnibus Rules Implementing Book V of Executive Order No. 292."1 Having failed to meet
the twenty (20) years length of service then required under Republic Act (R.A.) No. 910,2 the
OAS considered him eligible to receive only the 5-year lump sum payment under said law.

On January 10, 2010, then President Gloria Macapagal-Arroyo approved R.A. 9946,3 which not
only reduced the requisite length of service under R.A. 910 from twenty (20) years to fifteen
(15) years to be entitled to the retirement benefits with lifetime annuity, but provided also for
a survivorship clause, among others.

Thus, the instant letter-request of CJ Panganiban seeking a recomputation of his creditable

government service to include the previouslyexcluded 4-year government service to enable him
to meet the reduced service requirement of fifteen (15) years for entitlement to retirement
benefits under R.A. 9946.
On December 14, 2010, the Court issued a Resolution4 directing CJ Panganiban to submit
additional documentary evidence to support his appointment as Legal Counsel to the DepEd
and its Secretary and Consultant to the BNE. In compliance, he submitted the January 19, 2011
Certifications5 of Former Education Secretary Roces and Retired Justice Bernardo P. Pardo
(Retired Justice Pardo) attesting to the fact of his tenure as Legal Counsel to the DepEd and its
Secretary and Consultant to the BNE.

The Court finds merit in CJ Panganiban’s request.

A careful perusal of the actual functions and responsibilities of CJ Panganiban as outlined in his
compliance with attached Sworn Statements of Former Education Secretary Roces and Retired
Justice Pardo reveal that he performed actual works and was assigned multifarious tasks
necessary and desirable to the main purpose of the DepEd and the BNE.

Former Education Secretary Roces certified that:

[C]hief Justice Panganiban rendered actual services to the BNE and the Department [of
Education] and to me in my official capacity as Secretary of Education for said period [from
January 1962 to December 1965], having been officially appointed by me as then Secretary of
Education and as Chairman of the Board of Education, he having been paid officially by the
government a monthly compensation for rendering such services to the government specifically
to the Department of Education and to the Board of National Education. He worked with the
Office of the Solicitor General on legal matters affecting the Department and the Board,
collaborating closely with then Solicitor Bernardo P. Pardo who was assigned by the Office of
the Solicitor General to the Department of Education.

Apart from legal issues, he devoted time and attention to matters assigned to him by the
Department or by the Board, like the development of educational policies, the selection and
distribution of textbooks and other educational materials, the setting of school calendars, the
procurement of equipment and supplies, management of state schools, etc.6

His services both as Legal Counsel to the DepEd and its Secretary and as Consultant to the BNE
during the period 1962-1965 was corroborated by Retired Justice Pardo who, in his affidavit,
certified that in his "capacity as Solicitor assigned by the Office of Solicitor General to the
Department of Education and Board of National Education"7 he and CJ Panganiban
"collaborated in many cases representing both the Board of National Education and Department
of Education, particularly then Secretary of Education Alejandro R. Roces, as well as in rendering
legal opinions to such offices."8

CJ Panganiban performed work ranging from high level assignments involving policy
development and implementation to the more humble tasks of selection and distribution of
educational materials and setting of school calendars. He himself views his work, thus: "[u]nlike
some present day consultants or counsels of government offices and officials, I rendered full
and actual service to the Philippine government, working daily at an assigned desk near the
Office of the Secretary of Education throughout the full term of Secretary Alejandro R. Roces,
January 1962 to December 1965."9
Associate Justice Arturo D. Brion (Justice Brion) is not persuaded by the evidence. He holds the
view that there must be an appointment to a position that is part of a government organizational
structure before any work rendered can be considered government service.

Under the old Administrative Code (Act No. 2657),10 a government "employee" includes any
person in the service of the Government or any branch thereof of whatever grade or class. A
government "officer," on the other hand, refers to officials whose duties involve the exercise of
discretion in the performance of the functions of government, whether such duties are
precisely defined or not. Clearly, the law, then and now, did not require a specific job
description and job specification. Thus, the absence of a specific position in a governmental
structure is not a hindrance for the Court to give weight to CJ Panganiban’s government service
as legal counsel and consultant. It must be remembered that retired Chief Justice Andres R.
Narvasa’s (CJ Narvasa) stint in a non-plantilla position as Member of the Court Studies
Committee of the Supreme Court, created under Administrative Order No. 164 of then Chief
Justice Querube C. Makalintal, was considered sufficient for purposes of crediting him with an
additional five (5) years of government service, reckoned from September 2, 1974 to 1979.11

In any case, having previously ruled to include as creditable government service the post-
retirement work of Justice Abraham T. Sarmiento as Special Legal Counsel to the University of
the Philippines System12 and to credit former CJ Narvasa with the legal counselling work he did
for the Agrava Fact-Finding Board to which he was appointed General Counsel by then
President Marcos,13 the Court sees no reason not to likewise credit in CJ Panganiban’s favor the
work he had performed as Legal Counsel to the DepEd and its Secretary, not to mention his
concurrent work as consultant to the BNE, and accordingly, qualify him for entitlement to
retirement benefits.

In A.M. No. 07-6-10-SC,14 apart from his work as Member of the Court Studies Committee of the
Supreme Court, CJ Narvasa was credited his term as General Counsel to the Agrava Fact-Finding
Board for one (1) year (from October 29, 1983 to October 24, 1984), as well as his 10-month
post-retirement service as Chairperson of the Preparatory Commission on Constitutional
Reforms created under Executive Order No. 43, thus, entitling him to monthly pension
computed from December 1, 2003. In A.M. No. 03-12-08-SC,15 the Court favorably considered
Justice Sarmiento's post-retirement work as Special Legal Counsel to the University of the
Philippines (from August 24, 2000 to January 15, 2002) as part of his creditable government
service apart from his service as Member of the UP Board of Regents (from January 16, 2002 to
December 31, 2003) and Chairman of the UP Board of Regents (from January 1, 2004 to
December 31, 2005).
Justice Brion views the Court’s favorable disposition of CJ Panganiban’s request for lifetime
annuity as another case of flip-flopping, believing that the Court already denied former Chief
Justice Panganiban’s request for full retirement benefits under R.A. No. 910 and would, thus,
be making a complete turnabout even as CJ Panganiban makes a request for the second time
and for the same previously-denied services.16

Justice Brion, however, is mistaken in his belief that the Court is reversing itself in this case.
There is no flip-flopping situation to speak of since this is the first instance that the Court En
Banc is being asked to pass upon a request concerning the computation of CJ Panganiban’s
creditable service for purposes of adjusting his retirement benefits. It may be recalled that
Deputy Clerk of Court and OAS Chief Atty. Eden T. Candelaria had simply responded to a query
made by CJ Panganiban when she wrote17 him, thus:

June 10, 2008

Hon. Artemio V. Panganiban

Retired Chief Justice

Your Honor:

This refers to your query through Ms. Vilma M. Tamoria on why your Honor’s service in the
Board of National Education was not included in the computation of retirement benefits.

In connection with his Honor’s Application for Compulsory Retirement, a Certification dated
November 14, 2006 issued by former Secretary of Education, the Honorable Alejandro R. Roces,
was submitted attesting that you had served as consultant to the Board of National Education
and concurrently Legal Counsel to the Secretary of Education from January 1962 to December
1965.

Consultancy or Contract of Service is not considered government service pursuant to Rule XI

(Contract of Services/Job Orders) of the Omnibus Rules Implementing Book V of Executive Order
No. 292. Hence, your Honor’s service as consultant to the Board of National Education from
January 1962 to December 1965 was not credited in the computation of creditable government
service.

Your Honor is therefore entitled only to the benefits under Section 2 of R.A. 910 as amended
which provides for a lump sum equivalent to five (5) years salary based on the last salary you
were receiving at the time of retirement considering that you did not attain the length of service
as required in Section 1. Thus, you Honor only has a total of 11 years, 1 month and 27 days or
11.15844 government service.

Very truly yours,

(Sgd.)
EDEN T. CANDELARIA
Deputy Clerk of Court and
Chief Administrative Officer

CJ Panganiban no longer pursued the matter with the OAS presumably because a converse ruling
allowing credit for his service with the BNE would still have left his total length of government
service short of the 20-year requirement as to entitle him to a lifetime annuity under Section 1
of R.A. 910. However, in view of the passage of R.A. 9946, which reduced the requisite period
of service from twenty (20) years to fifteen (15) years to benefit from a grant of lifetime annuity,
CJ Panganiban sought the Court’s approval to include his 4-year service as Legal Counsel to the
DepEd and its Secretary, and as Consultant to the BNE as creditable government service.

Besides, nothing prevents the Court from taking a second look into the merits of a request and
overturning a ruling determined to be inconsistent with principles of fairness and equality. In
particular, the grant of life annuity benefit to Justice Sarmiento was a result of the Court’s
reversal of its earlier Resolution denying the request for re-computation. Notably, the Court
found merit in Justice Sarmiento’s plea for liberality and considered his post-retirement work
creditable government service to complete the 20- year length of service required for him to
avail of full retirement benefits under R.A. 910.

It bears emphasis that treatment must be without preference especially between persons
similarly situated or in equal footing. Just as CJ Narvasa’s work as General Counsel to the Agrava
Board, and Justice Sarmiento’s service as Special Legal Counsel to UP were considered creditable
government service, so should the consideration be for CJ Panganiban’s work, at least, as Legal
Counsel to the DepEd and its Secretary.

Justice Brion asserts that CJ Panganiban’s own claim in his Bio-Data and Personal Data Sheet
that he remained in active private law practice at the same time that he acted as Legal Counsel
to the DepEd and its Secretary and as Consultant to the BNE prevents him from asserting any
claim to the contrary. It should be stressed that CJ Panganiban only filed his request for re-
computation of his retirement benefits in the hope that the Court will credit in his favor the
work he rendered both as Legal Counsel to the DepEd and its Secretary and as Consultant to the
BNE in the same way that it credited retired Justice Sarmiento’s and retired CJ Narvasa’s services
as Special Legal Counsel to the UP and General Counsel to the Agrava Board,
respectively.1âwphi1 When CJ Panganiban submitted his claims to the Court’s sense of fairness
and wisdom, it was the Court that directed him to present additional evidence in support of the
true nature of the services he rendered to these government agencies.

The alleged inconsistency between his earlier statements of being in private law practice in his
Bio-Data and Personal Data Sheet and his proffered evidence now showing the nature and
extent of his services to the DepEd and its Secretary and to the BNE is more apparent than real.
The perception of continuous and uninterrupted exercise of one's legal profession, despite
periodic interruptions foisted by public service, is not uncommon among legal practitioners.
After all, legal counselling work, even if rendered to a government agency, is part of legal
practice. During the time that CJ Narvasa served as Member of the Court Studies Committee of
the Supreme Court from 1974 to 1979, prior to his appointment as General Counsel to the
Agrava Board, he likewise appeared to have regarded himself in constant active law
practice18 and yet this did not deter the Court from considering the weight of the work he
actually rendered to the government and, thus, credited him not only his one-year stint as
General Counsel of the Agrava Board but even the full term of his earlier involvement as
Member of the Court Studies Committee of the Supreme Court.

Nonetheless, Justice Brion insists that no substantial proof has been presented to support the
inference that the work rendered by CJ Panganiban constituted government service and, hence,
the application of liberality in the appreciation and interpretation of the law is unjustified.
Admittedly, the only evidence presented to support CJ Panganiban's claim that he worked as
Legal Counsel to the DepEd and its Secretary and as Consultant to the BNE are the Sworn
Statements of Retired Justice Pardo and Former Education Secretary Roces and the submissions
of CJ Panganiban but this evidence can hardly be considered undeserving of weight and lacking
in substance, coming from a retired member of the Court, a former Cabinet Secretary and a
former Chief Justice of the Supreme Court, whose credibility remains untarnished and is beyond
question. Justice Brion himself does not dispute the veracity of their claims that CJ Panganiban
did, in fact, render actual service. Hence, notwithstanding the absence of any other record of CJ
Panganiban’s appointment to a position or item within the DepEd and the BNE, his actual service
to these government agencies must be regarded as no less than government service and should,
therefore, be credited in his favor consistent with the Court's liberal rulings in the cases of CJ
Narvasa and Justice Sarmiento.

The Supreme Court has unquestionably followed the practice of liberal treatment in passing
upon retirement claims of judges and justices, thus: (1) waiving the lack of required length of
service in cases of disability or death while in actual service19 or distinctive service; (2) adding
accumulated leave credits to the actual length of government service in order to qualify one for
retirement; (3) tacking post-retirement service in order to complete the years of government
service required; (4) extending the full benefits of retirement upon compassionate and
humanitarian considerations;20 and (5) considering legal counselling work for a government
body or institution as creditable government service.

The generous extent of the Court’s liberality in granting retirement benefits is obvious in Re:
Justice Efren I. Plana:21

It may also be stressed that under the beneficient provisions of Rep. Act 910, as amended, a
Justice who reaches age 70 is entitled to full retirement benefits with no length of service
required. Thus, a 69 year old lawyer appointed to the bench will get full retirement benefits for
the rest of his life upon reaching age 70, even if he served in the government for only one year.
Justice Plana served the government with distinction for 33 years, 5 months, and 11 days, more
than 5 years of which were served as a Justice of the Court of Appeals of this Court.

In the instant case, no liberal construction is even necessary to resolve the merits of CJ
Panganiban's request. The Court need only observe consistency in its rulings.

WHEREFORE, the Court resolves to GRANT former Chief Justice Artemio V. Panganiban’s
request for a re-computation of his creditable government service to include the 4-year period
from January 1962 to December 1965 that he served as Legal Counsel to the Department of
Education and its then Secretary and Consultant to the Board of National Education, as duly
attested to by retired Justice Bernardo P. Pardo and then Secretary of Education himself,
Alejandro R. Roces.

ACCORDINGLY, the Office of Administrative Services is hereby DIRECTED to re-compute former

Chief Justice Artemio V. Panganiban's creditable government service and his corresponding
retirement benefits.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 116033 February 26, 1997

ALFREDO L. AZARCON, petitioner,

vs.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA, respondents.

PANGANIBAN, J.:

Does the Sandiganbayan have jurisdiction over a private individual who is charged with
malversation of public funds as a principal after the said individual had been designated by the
Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a
public officer and therefore subject to the graft court's jurisdiction as a consequence of such
designation by the BIR?

These are the main questions in the instant petition for review of Respondent Sandiganbayan's
Decision1 in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of
malversation of public funds and property, and Resolution2 dated June 20, 1994, denying his
motion for new trial or reconsideration thereof.

The Facts

Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and
ore."3 His services were contracted by the Paper Industries Corporation of the Philippines
(PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the services of
sub-contractors like Jaime Ancla whose trucks were left at the former's premises.4 From this set
of circumstances arose the present controversy.

. . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property

was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed
to the Regional Director (Jose Batausa) or his authorized representative of Revenue
Region 10, Butuan City commanding the latter to distraint the goods, chattels or
effects and other personal property of Jaime Ancla, a sub-contractor of accused
Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to
accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit
 to BIR the property in his possession owned by taxpayer Ancla. The Warrant of
Garnishment was received by accused Azarcon on June 17, 1985.5

Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under
Authority of the National Internal Revenue," assumed the undertakings specified in the receipt
the contents of which are reproduced as follows:

(I), the undersigned, hereby acknowledge to have received from Amadeo V. San
Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines,
the following described goods, articles, and things:

Kind of property — Isuzu dump truck

Motor number — E120-229598
Chassis No. — SPZU50-1772440
Number of CXL — 6
Color — Blue
Owned By — Mr. Jaime Ancla

the same having been this day seized and left in (my) possession pending
investigation by the Commissioner of Internal Revenue or his duly authorized
representative. (I) further promise that (I) will faithfully keep, preserve, and, to the
best of (my) ability, protect said goods, articles, and things seized from defacement,
demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter
nor remove, nor permit others to alter or remove or dispose of the same in any
manner without the express authority of the Commissioner of Internal Revenue;
and that (I) will produce and deliver all of said goods, articles, and things upon the
order of any court of the Philippines, or upon demand of the Commissioner of
Internal Revenue or any authorized officer or agent of the Bureau of Internal
Revenue.6

Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional
Director for Revenue Region 10 B, Butuan City stating that

. . . while I have made representations to retain possession of the property and

signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease
his operations with us. This is evidenced by the fact that sometime in August, 1985
he surreptitiously withdrew his equipment from my custody. . . . In this connection,
may I therefore formally inform you that it is my desire to immediately relinquish
whatever responsibilities I have over the above-mentioned property by virtue of
the receipt I have signed. This cancellation shall take effect immediately. . . .7

Incidentally, the petitioner reported the taking of the truck to the security manager of
PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out
 of the PICOP concession. By the time the order to bar the truck's exit was given, however,
it was too late.8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:

An analysis of the documents executed by you reveals that while you are (sic) in
possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the
liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal
Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment
which you have signed, obliged and committed to surrender and transfer to this
office. Your failure therefore, to observe said provisions does not relieve you of
your responsibility.9

Thereafter, the Sandiganbayan found that

On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue

Region 10 B, Butuan City, sent a progress report to the Chief of the Collection
Branch of the surreptitious taking of the dump truck and that Ancla was renting out
the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper
Industries Corporation of the Philippines, the same company which engaged
petitioner's earth moving services), Mangagoy, Surigao del Sur. She also suggested
that if the report were true, a warrant of garnishment be reissued against Mr.
Cueva for whatever amount of rental is due from Ancla until such time as the
latter's tax liabilities shall be deemed satisfied. . . However, instead of doing so,
Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla
on 22 January 1988, or after more than one year had elapsed from the time of Mrs.
Calo's report. 10

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the
Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan prosecutor and
granted authority to conduct preliminary investigation on August 22, 1988, in a letter by Special
Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado Vasquez. 11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the
Sandiganbayan with the crime of malversation of public funds or property under Article 217 in
relation to Article 222 of the Revised Penal Code (RPC) in the following Information 12 filed on
January 12, 1990, by Special Prosecution Officer Victor Pascual:

That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del
Sur, Philippines, and within the jurisdiction of this Honorable Court, accused
Alfredo L. Azarcon, a private individual but who, in his capacity as
depository/administrator of property seized or deposited by the Bureau of Internal
Revenue, having voluntarily offered himself to act as custodian of one Isuzu
 Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and
number CXL-6 and was authorized to be such under the authority of the Bureau of
Internal Revenue, has become a responsible and accountable officer and said
motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax
liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE PESOS
and 59/100 (P80,831.59) became a public property and the value thereof as public
fund, with grave abuse of confidence and conspiring and confederating with said
Jaime C. Ancla, likewise, a private individual, did then and there wilfully, (sic)
unlawfully and feloniously misappropriate, misapply and convert to his personal
use and benefit the aforementioned motor vehicle or the value thereof in the
aforestated amount, by then and there allowing accused Jaime C. Ancla to remove,
retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority,
consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the
damage and prejudice of the government in the amount of P80,831.59 in a form of
unsatisfied tax liability.

CONTRARY TO LAW.

The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991,
alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the
petitioner was not a public officer, hence a doubt exists as to why he was being charged with
malversation under Article 217 of the Revised Penal Code. 13 The Sandiganbayan granted the
motion for reinvestigation on May 22, 1991. 14 After the reinvestigation, Special Prosecution
Officer Roger Berbano, Sr., recommended the "withdrawal of the information" 15 but was
"overruled by the Ombudsman." 16

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the
Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a
public officer. 17 On May 18, 1992; the Sandiganbayan denied the motion. 18

When the prosecution finished presenting its evidence, the petitioner then filed a motion for
leave to file demurrer to evidence which was denied on November 16, 1992, "for being without
merit." 19 The petitioner then commenced and finished presenting his evidence on February 15,
1993.

The Respondent Court's Decision

On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the dispositive portion

of which reads:

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond
reasonable doubt as principal of Malversation of Public Funds defined and
penalized under Article 217 in relation to Article 222 of the Revised Penal Code and,
 applying the Indeterminate Sentence Law, and in view of the mitigating
circumstance of voluntary surrender, the Court hereby sentences the accused to
suffer the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY
of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of
Internal Revenue the amount of P80,831.59; to pay a fine in the same amount
without subsidiary imprisonment in case of insolvency; to suffer special perpetual
disqualification; and, to pay the costs.

Considering that accused Jaime Ancla has not yet been brought within the
jurisdiction of this Court up to this date, let this case be archived as against him
without prejudice to its revival in the event of his arrest or voluntary submission to
the jurisdiction of this Court.

SO ORDERED.

Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23,
1994, which was denied by the Sandiganbayan in its Resolution 23 dated December 2, 1994.

Hence, this petition.

The Issues

The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed
Decision and Resolution:

I. The Sandiganbayan does not have jurisdiction over crimes

committed solely by private individuals.

II. In any event, even assuming arguendo that the appointment of a

private individual as a custodian or a depositary of distrained property
is sufficient to convert such individual into a public officer, the
petitioner cannot still be considered a public officer because:

[A]

There is no provision in the National Internal Revenue Code which

authorizes the Bureau of Internal Revenue to constitute private
individuals as depositaries of distrained properties.

[B]

His appointment as a depositary was not by virtue of a direct provision

of law, or by election or by appointment by a competent authority.
 III. No proof was presented during trial to prove that the distrained
vehicle was actually owned by the accused Jaime Ancla; consequently,
the government's right to the subject property has not been
established.

IV. The procedure provided for in the National Internal Revenue Code
concerning the disposition of distrained property was not followed by
the B.I.R., hence the distraint of personal property belonging to Jaime
C. Ancla and found allegedly to be in the possession of the petitioner
is therefore invalid.

V. The B.I.R. has only itself to blame for not promptly selling the
distrained property of accused Jaime C. Ancla in order to realize the
amount of back taxes owed by Jaime C. Ancla to the Bureau. 24

In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject
matter of the controversy. Corollary to this is the question of whether petitioner can be
considered a public officer by reason of his being designated by the Bureau of Internal Revenue
as a depositary of distrained property.

The Court's Ruling

The petition is meritorious.

Jurisdiction of the Sandiganbayan

It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the
provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction of the court
must appear clearly from the statute law or it will not be held to exist. It cannot be presumed
or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a court is determined
by the law at the time of commencement of the action." 27

In this case, the action was instituted with the filing of this information on January 12, 1990;
hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No.
1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At
that time, Section 4 of P.D. No. 1606 provided that:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known

as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code;
 (2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does
not exceed prision correccional or imprisonment for six (6) years or a
fine of P6,000.00 shall be tried by the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit
Trial Court.

xxx xxx xxx

In case private individuals are charged as co-principals, accomplices or accessories

with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees.

xxx xxx xxx

The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will
have jurisdiction over a private individual, i.e. when the complaint charges the private individual
either as a co-principal, accomplice or accessory of a public officer or employee who has been
charged with a crime within its jurisdiction.

Azarcon: A Public Officer or A Private Individual?

The Information does not charge petitioner Azarcon of being a co-principal, accomplice or
accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction.
Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction
over the crime charged. Article 203 of the RPC determines who are public officers:

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

Thus,
 (to) be a public officer, one must be —

(1) Taking part in the performance of public functions in the government, or

Performing in said Government or any of its branches public duties as

an employee, agent, or subordinate official, of any rank or class; and

(2) That his authority to take part in the performance of public functions or to
perform public duties must be —

a. by direct provision of the law, or

b. by popular election, or

c. by appointment by competent authority. 28

Granting arguendo that the petitioner, in signing the receipt for the truck constructively
distrained by the BIR, commenced to take part in an activity constituting public functions, he
obviously may not be deemed authorized by popular election. The next logical query is whether
petitioner's designation by the BIR as a custodian of distrained property qualifies as
appointment by direct provision of law, or by competent authority. 29 We answer in the
negative.

The Solicitor General contends that the BIR, in effecting constructive distraint over the truck
allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who was in
possession thereof to sign a pro forma receipt for it, effectively "designated" petitioner a
depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31 This is based on the theory
that

(t)he power to designate a private person who has actual possession of a distrained
property as a depository of distrained property is necessarily implied in the BIR's
power to place the property of a delinquent tax payer (sic) in distraint as provided
for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the
National Internal Revenue Code, (NIRC) . . . . 32

We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because
the facts therein are not identical, similar or analogous to those obtaining here. While the cited
case involved a judicial deposit of the proceeds of the sale of attached property in the hands of
the debtor, the case at bench dealt with the BIR's administrative act of effecting constructive
distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which
was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that
court's jurisdiction and judicial power to constitute the judicial deposit and give "the depositary
a character equivalent to that of a public official." 33 However, in the instant case, while the BIR
had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC
did not grant it power to appoint Azarcon a public officer.

It is axiomatic in our constitutional framework, which mandates a limited government, that its
branches and administrative agencies exercise only that power delegated to them as "defined
either in the Constitution or in legislation or in both." 34 Thus, although the "appointing power
is the exclusive prerogative of the President, . . ." 35the quantum of powers possessed by an
administrative agency forming part of the executive branch will still be limited to that "conferred
expressly or by necessary or fair implication" in its enabling act. Hence, "(a)n administrative
officer, it has been held, has only such powers as are expressly granted to him and those
necessarily implied in the exercise thereof." 36 Corollarily, implied powers "are those which are
necessarily included in, and are therefore of lesser degree than the power granted. It cannot
extend to other matters not embraced therein, nor are not incidental thereto." 37 For to so
extend the statutory grant of power "would be an encroachment on powers expressly lodged in
Congress by our Constitution." 38 It is true that Sec. 206 of the NIRC, as pointed out by the
prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to
preserve a distrained property, thus:

xxx xxx xxx

The constructive distraint of personal property shall be effected by requiring the

taxpayer or any person having possession or control of such property to sign a
receipt covering the property distrained and obligate himself to preserve the same
intact and unaltered and not to dispose of the same in any manner whatever
without the express authority of the Commissioner.

xxx xxx xxx

However, we find no provision in the NIRC constituting such person a public officer by reason of
such requirement. The BIR's power authorizing a private individual to act as a depositary cannot
be stretched to include the power to appoint him as a public officer. The prosecution argues
that "Article 222 of the Revised Penal Code . . . defines the individuals covered by the term
'officers' under Article 217 39 . . ." of the same Code. 40 And accordingly, since Azarcon became
"a depository of the truck seized by the BIR" he also became a public officer who can be
prosecuted under Article 217 . . . ." 41

The Court is not persuaded. Article 222 of the RPC reads:

Officers included in the preceding provisions. — The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any
administrator or depository of funds or property attached, seized or deposited by
public authority, even if such property belongs to a private individual.
"Legislative intent is determined principally from the language of a statute. Where the language
of a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either
impossible or absurd or would lead to an injustice." 42 This is particularly observed in the
interpretation of penal statutes which "must be construed with such strictness as to carefully
safeguard the rights of the defendant . . . ." 43 The language of the foregoing provision is clear.
A private individual who has in his charge any of the public funds or property enumerated
therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven
of the RPC, should likewise be penalized with the same penalty meted to erring public officers.
Nowhere in this provision is it expressed or implied that a private individual falling under said
Article 222 is to be deemed a public officer.

After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon
and his co-accused Jaime Ancla to be both private individuals erroneously charged before and
convicted by Respondent Sandiganbayan which had no jurisdiction over them. The
Sandiganbayan's taking cognizance of this case is of no moment since "(j)urisdiction cannot be
conferred by . . . erroneous belief of the court that it had jurisdiction." 44 As aptly and correctly
stated by the petitioner in his memorandum:

From the foregoing discussion, it is evident that the petitioner did not cease to be
a private individual when he agreed to act as depositary of the garnished dump
truck. Therefore, when the information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property, the prosecution was
in fact charging two private individuals without any public officer being similarly
charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction
over the controversy and therefore all the proceedings taken below as well as the
Decision rendered by Respondent Sandiganbayan, are null and void for lack of
jurisdiction. 45

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET
ASIDE and declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.
 [G.R. No. 142801-802. July 10, 2001]

BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN KHO,

BENIGNO MANGA, LULU MENDOZA, petitioners, vs. HON. EXECUTIVE SECRETARY
RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO, DEPARTMENT OF FINANCE,
HON. SECRETARY BENJAMIN DIOKNO, DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. SECRETARY ARTEMIO TUQUERO, DEPARTMENT OF JUSTICE, respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:

In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning
EIIB, Cesar Posada, Remedios Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for
themselves and in behalf of others with whom they share a common or general interest, seek
the nullification of Executive Order No. 191[1] and Executive Order No. 223[2] on the ground that
they were issued by the Office of the President with grave abuse of discretion and in violation
of their constitutional right to security of tenure.
The facts are undisputed:
On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No.
[3]
127 establishing the Economic Intelligence and Investigation Bureau (EIIB) as part of the
structural organization of the Ministry of Finance.[4] The EIIB was designated to perform the
following functions:

(a) Receive, gather and evaluate intelligence reports and information and evidence on the
nature, modes and extent of illegal activities affecting the national economy, such as, but
not limited to, economic sabotage, smuggling, tax evasion, and dollar-salting, investigate
the same and aid in the prosecution of cases;

(b) Coordinate with external agencies in monitoring the financial and economic activities of
persons or entities, whether domestic or foreign, which may adversely affect national
financial interest with the goal of regulating, controlling or preventing said activities;

(c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the
general framework and guidelines in the conduct of intelligence and investigating works;

(d) Supervise, monitor and coordinate all the intelligence and investigation operations of
the operating Bureaus and Offices under the Ministry;

(e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases
against personnel of the Ministry and its constituents units;
 (f) Perform such other appropriate functions as may be assigned by the Minister or his
deputies.[5]

In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies
in the course of their anti-smuggling operations, President Aquino issued Memorandum Order
No. 225 on March 17, 1989, providing, among others, that the EIIB shall be the agency of primary
responsibility for anti-smuggling operations in all land areas and inland waters and waterways
outside the areas of sole jurisdiction of the Bureau of Customs.[6]
Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order
No. 191 entitled Deactivation of the Economic Intelligence and Investigation
Bureau.[7]Motivated by the fact that the designated functions of the EIIB are also being
performed by the other existing agencies of the government and that there is a need to
constantly monitor the overlapping of functions among these agencies, former President
Estrada ordered the deactivation of EIIB and the transfer of its functions to the Bureau of
Customs and the National Bureau of Investigation.
Meanwhile, President Estrada issued Executive Order No. 196[8] creating the Presidential
Anti-Smuggling Task Force Aduana.[9]
Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada
issued Executive Order No. 223[10] providing that all EIIB personnel occupying positions specified
therein shall be deemed separated from the service effective April 30, 2000, pursuant to a bona
fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of
positions.[11]
Agonizing over the loss of their employment, petitioners now come before this Court
invoking our power of judicial review of Executive Order Nos. 191 and 223. They anchor their
petition on the following arguments:
A

Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being
violative of Section 2(3), Article IX-B of the Philippine Constitution and/or for having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

B.

The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are
considered to effect a reorganization of the EIIB, such reorganization was made in bad faith.

C.

The President has no authority to abolish the EIIB.

 Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a
violation of their right to security of tenure; (b) tainted with bad faith as they were not actually
intended to make the bureaucracy more efficient but to give way to Task Force Aduana, the
functions of which are essentially and substantially the same as that of EIIB; and (c) a usurpation
of the power of Congress to decide whether or not to abolish the EIIB.
Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President
enjoys the totality of the executive power provided under Sections 1 and 7, Article VII of the
Constitution, thus, he has the authority to issue Executive Order Nos. 191 and 223; (b) the said
executive orders were issued in the interest of national economy, to avoid duplicity of work and
to streamline the functions of the bureaucracy; and (c) the EIIB was not abolished, it was
only deactivated.
The petition is bereft of merit.
Despite the presence of some procedural flaws in the instant petition, such as, petitioners
disregard of the hierarchy of courts and the non-exhaustion of administrative remedies, we
deem it necessary to address the issues. It is in the interest of the State that questions relating
to the status and existence of a public office be settled without delay. We are not without
precedent. In Dario v. Mison,[12] we liberally decreed:

The Court disregards the questions raised as to procedure, failure to exhaust administrative
remedies, the standing of certain parties to sue, for two reasons, `[b]ecause of the demands of
public interest, including the need for stability in the public service,' and because of the serious
implications of these cases on the administration of the Philippine civil service and the rights of
public servants.

At first glance, it seems that the resolution of this case hinges on the question - Does the
deactivation of EIIB constitute abolition of an office? However, after coming to terms with the
prevailing law and jurisprudence, we are certain that the ultimate queries should be a) Does the
President have the authority to reorganize the executive department? and, b) How should the
reorganization be carried out?
Surely, there exists a distinction between the words deactivate and abolish.
To deactivate means to render inactive or ineffective or to break up by discharging or
reassigning personnel,[13]while to abolish means to do away with, to annul, abrogate or destroy
completely.[14] In essence, abolition denotes an intention to do away with the
office wholly and permanently.[15] Thus, while in abolition, the office ceases to exist, the same is
not true in deactivation where the office continues to exist, albeit remaining dormant or
inoperative. Be that as it may, deactivation and abolition are both reorganization measures.
The Solicitor General only invokes the above distinctions on the mistaken assumption that
the President has no power to abolish an office.
 The general rule has always been that the power to abolish a public office is lodged with the
legislature.[16] This proceeds from the legal precept that the power to create includes the power
to destroy. A public office is either created by the Constitution, by statute, or by authority of
law.[17] Thus, except where the office was created by the Constitution itself, it may be abolished
by the same legislature that brought it into existence.[18]
The exception, however, is that as far as bureaus, agencies or offices in the executive
department are concerned, the Presidents power of control may justify him to inactivate the
functions of a particular office,[19] or certain laws may grant him the broad authority to carry out
reorganization measures.[20] The case in point is Larin v. Executive Secretary.[21] In this case, it
was argued that there is no law which empowers the President to reorganize the BIR. In
decreeing otherwise, this Court sustained the following legal basis, thus:

Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132
or to reorganize the BIR.

We do not agree.

xxxxxx

Section 48 of R.A. 7645 provides that:

Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. The
heads of departments, bureaus and offices and agencies are hereby directed to identify their
respective activities which are no longer essential in the delivery of public services and which
may be scaled down, phased out or abolished, subject to civil service rules and regulations.
X x x.Actual scaling down, phasing out or abolition of the activities shall be effected pursuant to
Circulars or Orders issued for the purpose by the Office of the President.

Said provision clearly mentions the acts of scaling down, phasing out and abolition of offices
only and does not cover the creation of offices or transfer of functions. Nevertheless, the act of
creating and decentralizing is included in the subsequent provision of Section 62 which provides
that:

Sec. 62. Unauthorized organizational charges.- Unless otherwise created by law or directed by
the President of the Philippines, no organizational unit or changes in key positions in any
department or agency shall be authorized in their respective organization structures and be
funded from appropriations by this Act. (italics ours)

The foregoing provision evidently shows that the President is authorized to effect
organizational changes including the creation of offices in the department or agency
concerned.

xxxxxx
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

Sec. 20. Residual Powers. Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and
which are not specifically enumerated above or which are not delegated by the President in
accordance with law. (italic ours)

This provision speaks of such other powers vested in the President under the law. What law
then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines
the continuing authority to reorganize the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities and to standardize salaries and materials.The
validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that all
laws, decrees, executive orders, proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall remain operative until amended, repealed
or revoked. So far, there is yet no law amending or repealing said decrees. (Emphasis supplied)

Now, let us take a look at the assailed executive order.

In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to
deactivate EIIB on Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a
provision similar to Section 62 of R.A. 7645 quoted in Larin, thus;

Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of
the Philippines, no changes in key positions or organizational units in any department or agency
shall be authorized in their respective organizational structures and funded from appropriations
provided by this Act.

We adhere to the precedent or ruling in Larin that this provision recognizes the authority of
the President to effect organizational changes in the department or agency under the executive
structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760. [22] Under
this law, the heads of departments, bureaus, offices and agencies and other entities in the
Executive Branch are directed (a) to conduct a comprehensive review of their respective
mandates, missions, objectives, functions, programs, projects, activities and systems and
procedures; (b)identify activities which are no longer essential in the delivery of public services
and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result
in the streamlined organization and improved overall performance of their respective
agencies.[23] Section 78 ends up with the mandate that the actual streamlining and productivity
improvement in agency organization and operation shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President.[24] The law has spoken clearly. We
are left only with the duty to sustain.
 But of course, the list of legal basis authorizing the President to reorganize any department
or agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), the
President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize
the administrative structure of the Office of the President. For this purpose, he may transfer
the functions of other Departments or Agencies to the Office of the President. In Canonizado v.
Aguirre,[25] we ruled that reorganization involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions. It takes place
when there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance.[26] It falls under the Office of the President. Hence, it is
subject to the Presidents continuing authority to reorganize.
It having been duly established that the President has the authority to carry out
reorganization in any branch or agency of the executive department, what is then left for us to
resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have
been regarded as valid provided they are pursued in good faith. Reorganization is carried out in
good faith if it is for the purpose of economy or to make bureaucracy more
efficient.[27] Pertinently, Republic Act No. 6656[28] provides for the circumstances which may be
considered as evidence of bad faith in the removal of civil service employees made as a result
of reorganization, to wit: (a) where there is a significant increase in the number of positions in
the new staffing pattern of the department or agency concerned; (b) where an office is
abolished and another performing substantially the same functions is created; (c) where
incumbents are replaced by those less qualified in terms of status of appointment, performance
and merit; (d) where there is a classification of offices in the department or agency concerned
and the reclassified offices perform substantially the same functions as the original offices,
and (e) where the removal violates the order of separation.[29]
Petitioners claim that the deactivation of EIIB was done in bad faith because four days after
its deactivation, President Estrada created the Task Force Aduana.
We are not convinced.
An examination of the pertinent Executive Orders[30] shows that the deactivation of EIIB and
the creation of Task Force Aduana were done in good faith. It was not for the purpose of
removing the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, which is
economy. While Task Force Aduana was created to take the place of EIIB, its creation does not
entail expense to the government.
Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196
provides that the technical, administrative and special staffs of EIIB are to be composed of
people who are already in the public service, they being employees of other existing
agencies. Their tenure with the Task Force would only be temporary, i.e., only when the
agency where they belong is called upon to assist the Task Force. Since their employment with
the Task force is only by way of detail or assignment, they retain their employment with the
existing agencies. And should the need for them cease, they would be sent back to the agency
concerned.
Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct
control and supervision of the President as base of the governments anti-smuggling
campaign.Such a smaller base has the necessary powers 1) to enlist the assistance of any
department, bureau, or office and to use their respective personnel, facilities and resources;
and 2) to select and recruit personnel from within the PSG and ISAFP for assignment to the Task
Force. Obviously, the idea is to encourage the utilization of personnel, facilities and resources
of the already existing departments, agencies, bureaus, etc., instead of maintaining an
independent office with a whole set of personnel and facilities. The EIIB had proven itself
burdensome for the government because it maintained separate offices in every region in the
Philippines.
And thirdly, it is evident from the yearly budget appropriation of the government that the
creation of the Task Force Aduana was especially intended to lessen EIIBs expenses. Tracing
from the yearly General Appropriations Act, it appears that the allotted amount for the EIIBs
general administration, support, and operations for the year 1995, was P128,031,000;[31] for
1996, P182,156,000;[32] for 1998, P219,889,000;[33] and, for
[34] [35]
1999, P238,743,000. These amounts were far above the P50,000,000 allocation to the
Task Force Aduana for the year 2000.
While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we
find the latter to have additional new powers. The Task Force Aduana, being composed of
elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces of
the Philippines (ISAFP),[36] has the essential power to effect searches, seizures and arrests. The
EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of
any department, bureau, office, or instrumentality of the government, including government-
owned or controlled corporations; and to use their personnel, facilities and resources. Again,
the EIIB did not have this power. And, the Task Force Aduana has the additional authority to
conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the
EIIB.
Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil
Sevice Commission, [37] we ruled that a reorganization in good faith is one designed to trim the
fat off the bureaucracy and institute economy and greater efficiency in its operation.
Lastly, we hold that petitioners right to security of tenure is not violated. Nothing is better
settled in our law than that the abolition of an office within the competence of a legitimate body
if done in good faith suffers from no infirmity. Valid abolition of offices is neither removal nor
separation of the incumbents.[38] In the instructive words laid down by this Court in Dario v.
Mison,[39] through Justice Abraham F. Sarmiento:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in
good faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose
of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of
dismissal) or separation actually occurs because the position itself ceases to exist. And in that
case, security of tenure would not be a Chinese wall. Be that as it may, if the abolition, which
is nothing else but a separation or removal, is done for political reasons or purposely to defeat
security of tenure, otherwise not in good faith, no valid abolition takes and whatever abolition
is done, is void ab initio. There is an invalid abolition as where there is merely a change of
nomenclature of positions, or where claims of economy are belied by the existence of ample
funds.

Indeed, there is no such thing as an absolute right to hold office. Except constitutional offices
which provide for special immunity as regards salary and tenure, no one can be said to have any
vested right in an office or its salary.[40]
While we cast a commiserating look upon the plight of all the EIIB employees whose lives
perhaps are now torn with uncertainties, we cannot ignore the unfortunate reality that our
government is also battling the impact of a plummeting economy. Unless the government is
given the chance to recuperate by instituting economy and efficiency in its system, the EIIB will
not be the last agency to suffer the impact. We cannot frustrate valid measures which are
designed to rebuild the executive department.
WHEREFORE, the petition is hereby DENIED. No costs.
SO ORDERED.
 G.R. No. 133132. February 15, 2001

ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners,

vs.
HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as
Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and
VIRGINIA U. CRISTOBAL,respondents.

RESOLUTION

GONZAGA-REYES, J.:

Respondents are seeking a reconsideration of the Court’s 25 January 2000 decision, wherein we
declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners’
constitutionally mandated right to security of tenure. As a consequence of our ruling, we held
that petitioners’ removal as Commissioners of the National Police Commission (NAPOLCOM)
and the appointment of new Commissioners in their stead were nullities and ordered the
reinstatement of petitioners and the payment of full backwages to be computed from the date
they were removed from office. 1

Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the
motion for reconsideration have been more than adequately discussed and disposed of by this
Court and hence, do not merit further attention.

Respondents insist that the Court should take judicial notice of then President Estrada’s
appointment of Alexis C. Canonizado to the position of Inspector General of the Internal Affairs
Service (IAS) of the Philippine National Police (PNP) on 30 June 1998, and of Canonizado’s
acceptance and of his having qualified for such position by taking his oath on 2 July 1998 before
then Department of Interior and Local Government Undersecretary Ronaldo Puno and again, on
7 July 1998, this time before the President, since these “partake of official acts of the Executive
Department,” which are matters of mandatory judicial notice, pursuant to section 1 of Rule 129
of the Rules of Court.2 By accepting such position, respondents contend that Canonizado is
deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of
NAPOLCOM Commissioner and Inspector General of the IAS are incompatible.

Although petitioners do not deny the appointment of Canonizado as Inspector General, they
maintain that Canonizado’s initiation and tenacious pursuance of the present case would belie
any intention to abandon his former office. Petitioners assert that Canonizado should not be
faulted for seeking gainful employment during the pendency of this case. Furthermore,
petitioners point out that from the time Canonizado assumed office as Inspector General he
never received the salary pertaining to such position, annexing to their comment a certification
issued by the Finance Service Office of the PNP stating this fact. 3
Abandonment of an office is the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. 4 In order to constitute
abandonment of office, it must be total and under such circumstances as clearly to indicate an
absolute relinquishment. 5 There must be a complete abandonment of duties of such
continuance that the law will infer a relinquishment. 6 Abandonment of duties is a voluntary
act; 7 it springs from and is accompanied by deliberation and freedom of choice. 8 There are,
therefore, two essential elements of abandonment: first, an intention to abandon and second,
an overt or “external” act by which the intention is carried into effect. 9

Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence. 10 Non-user refers to a neglect to use a right or privilege or to exercise an
office. 11 However, nonperformance of the duties of an office does not constitute abandonment
where such nonperformance results from temporary disability or from involuntary failure to
perform. 12 Abandonment may also result from an acquiescence by the officer in his wrongful
removal or discharge, for instance, after a summary removal, an unreasonable delay by an
officer illegally removed in taking steps to vindicate his rights may constitute an abandonment
of the office. 13 Where, while desiring and intending to hold the office, and with no willful desire
or intention to abandon it, the public officer vacates it in deference to the requirements of a
statute which is afterwards declared unconstitutional, such a surrender will not be deemed an
abandonment and the officer may recover the office. 14

By accepting the position of Inspector General during the pendency of the present case -
brought precisely to assail the constitutionality of his removal from the NAPOLCOM -
Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter
position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was
compelled to do so on the strength of section 8 of RA 8551, which provides –

Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed
expired which shall constitute a bar to their reappointment or an extension of their terms in the
Commission except for current Commissioners who have served less than two (2) years of their
terms of office who may be appointed by the President for a maximum terms of two (2) years.

In our decision of 25 January 2000, we struck down the abovequoted provision for being
violative of petitioners’ constitutionally guaranteed right to security of tenure. Thus, Canonizado
harbored no willful desire or intention to abandon his official duties. In fact, Canonizado,
together with petitioners Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what
they perceived to be an illegal removal; a few weeks after RA 8551 took effect on 6 March 1998,
petitioners instituted the current action on 15 April 1998, assailing the constitutionality of
certain provisions of said law. The removal of petitioners from their positions by virtue of a
constitutionally infirm act necessarily negates a finding of voluntary
relinquishment. 1âwphi1.nêt
The next issue is whether Canonizado’s appointment to and acceptance of the position of
Inspector General should result in an abandonment of his claim for reinstatement to the
NAPOLCOM. It is a well settled rule that he who, while occupying one office, accepts another
incompatible with the first, ipso facto vacates the first office and his title is thereby terminated
without any other act or proceeding. 15 Public policy considerations dictate against allowing the
same individual to perform inconsistent and incompatible duties. 16 The incompatibility
contemplated is not the mere physical impossibility of one person’s performing the duties of
the two offices due to a lack of time or the inability to be in two places at the same moment,
but that which proceeds from the nature and relations of the two positions to each other as to
give rise to contrariety and antagonism should one person attempt to faithfully and impartially
discharge the duties of one toward the incumbent of the other. 17

There is no question that the positions of NAPOLCOM Commissioner and Inspector General of
the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any
personnel of the IAS from sitting in a committee charged with the task of deliberating on the
appointment, promotion, or assignment of any PNP personnel, 18 whereas the NAPOLCOM has
the power of control and supervision over the PNP. 19 However, the rule on incompatibility of
duties will not apply to the case at bar because at no point did Canonizado discharge the
functions of the two offices simultaneously. Canonizado was forced out of his first office by the
enactment of section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General
on 30 June 1998, he had ceased to discharge his official functions as NAPOLCOM Commissioner.
As a matter of fact, it was on this same date that Leo S. Magahum and Cleofe M. Factoran were
appointed as NAPOLCOM Commissioners by then President Estrada, to join Romeo L. Cairme
and Jose Percival L. Adiong - who were earlier appointed and given a term extension,
respectively, by then President Ramos - thereby completing the appointments of the four
regular members of the NAPOLCOM, pursuant to section 4 20 of the amendatory law. Thus, to
reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner
never occupied the two positions, of Commissioner and Inspector General, nor discharged their
respective functions, concurrently.

At this juncture, two cases should be mentioned for their factual circumstances almost nearly
coincide with that of petitioners. The first is Tan v. Gimenez 21 wherein petitioner Francisco Tan,
a public school teacher, was required to resign by the Commissioner of Civil Service for gross
misconduct. Tan appealed to the Civil Service Board of Appeals, which reversed the decision of
the Commissioner and acquitted him of the charge. During the pendency of Tan’s appeal, he
worked as a clerk in the Office of the Provincial Treasurer of Leyte. The Court held that accepting
this second position did not constitute abandonment of his former position because -

[h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the
decision of the Commissioner of Civil Service and by virtue thereof was prevented from
exercising the functions of his position and receiving the corresponding compensation therefor.
While thus deprived of his office and emoluments thereunto appertaining the petitioner had to
find means to support himself and his family. The fact that during the time his appeal was
pending and was thus deprived of his office and salary, he sought and found employment in
another branch of the government does not constitute abandonment of his former position. To
deny him the right to collect his back salaries during such period would be tantamount to
punishing him after his exoneration from the charge which caused his dismissal from the service.
xxx

Very similar to Tan is the case of Gonzales v. Hernandez. 22 In this 1961 case, petitioner Guillermo
Gonzales sought reinstatement to his former position as attorney-general of the Investigation
and Secret Service Division of the Department of Finance. As in Tan, Gonzales was compelled to
resign from office by the Commissioner of Civil Service, who found him guilty of disreputable
conduct. During the pendency of his appeal with the Civil Service Board of Appeals, petitioner
applied for and accepted employment as an emergency helper in the Government Service
Insurance System. The Board of Appeals eventually modified the Commissioner’s finding by
lowering the penalty from removal from office to suspension of two months without pay. In
response to the question of whether Gonzales was deemed to have abandoned his position by
accepting another position in the GSIS, the Court held that –

Plaintiff’s position in the GSIS was temporary in nature, during the period of an emergency only.
He had the right to live during the pendency of his appeal and naturally the right to accept any
form of employment. In any case as the court below found, this temporary employment is not
incompatible with his old position; he could resign this temporary position any time as soon as
his case has been definitely decided in his favor.

xxx

Although the Court found that the second position accepted by Gonzales was only temporary in
nature, the rule on incompatibility of duties makes no such distinction between a permanent or
temporary second office. Moreover, the Court still invoked the rationale previously cited in Tan
- that petitioner’s “right to live” justified his acceptance of other employment during the
pendency of his appeal. The Court held that Gonzales’s second position was not “incompatible”
with the first since he could resign from the second position when the case is finally decided in
his favor and before he re-assumes his previous office.

As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as
Commissioner, not by an erroneous decision, but by an unconstitutional provision of law.
Canonizado, like the petitioners in the above mentioned cases, held a second office during the
period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado
was impelled to accept this subsequent position by a desire to continue serving the country, in
whatever capacity. 23 Surely, this selfless and noble aspiration deserves to be placed on at least
equal footing with the worthy goal of providing for oneself and one’s family, either of which are
sufficient to justify Canonizado’s acceptance of the position of Inspector General. A contrary
ruling would deprive petitioner of his right to live, which contemplates not only a right to earn
a living, as held in previous cases, but also a right to lead a useful and productive life.
Furthermore, prohibiting Canonizado from accepting a second position during the pendency of
his petition would be to unjustly compel him to bear the consequences of an unconstitutional
act which under no circumstance can be attributed to him. However, before Canonizado can re-
assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP.

Respondents also raise some questions regarding the execution of the Court’s decision. They
cite the fact that because there are three petitioners who were ordered reinstated and four
persons currently acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose Percival
L. Adiong, 24 Leo S. Magahum and Cleofe M. Factoran, 25it is unclear who of the current
commissioners will be replaced by petitioners. Respondents point out that the execution of the
decision becomes particularly complicated when it comes to Adiong, who was a member of the
NAPOLCOM under Republic Act No. 6975 (RA 6975), but was removed therefrom and
subsequently re-appointed for a two-year term, pursuant to RA 8551. According to respondents,
given Adiong’s peculiar situation, it is unclear whether the latter should also be entitled to
reinstatement as a result of the assailed decision. 26 Adiong, on his own behalf, filed a Motion
for Clarification 27 with this Court contending that, if the Court should uphold the declaration of
nullity of section 8 of RA 8551, then he is also entitled to reinstatement to the NAPOLCOM
pursuant to his appointment under RA 6975.

An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no
protection. 28 Therefore, the unavoidable consequence of the Court’s declaration that section 8
of RA 8551 violates the fundamental law is that all acts done pursuant to such provision shall be
null and void, including the removal of petitioners and Adiong from their positions in the
NAPOLCOM and the appointment of new commissioners in their stead. When a regular
government employee is illegally dismissed, his position does not become vacant and the new
appointment made in order to replace him is null and void ab initio. 29 Rudimentary is the
precept that there can be no valid appointment to a non-vacant position. 30 Accordingly,
Adiong’s appointment on 11 March 1998 for a term of two years, pursuant to section 8 of RA
8551, is null and void. However, he should now be permitted to enjoy the remainder of his term
under RA 6975. Therefore, based on our foregoing disquisition, there should no longer be any
doubt as to the proper execution of our 25 January 2000 decision – all the Commissioners
appointed under RA 8551 should be removed from office, in order to give way to the
reinstatement of petitioners and respondent Adiong.

Respondents insist that the present case is similar to a quo warranto proceeding since
petitioners prayed for the removal of the incumbent commissioners and for their reinstatement.
Therefore, they claim that Magahum and Factoran should have been impleaded as respondents
and given the opportunity to defend their positions. 31 We disagree. First and foremost, the
petition filed before this Court sought a ruling on the constitutionality of sections 4 and 8 of RA
8551. The inevitable consequence of this Court’s declaration that section 8 of said law is
unconstitutional is the removal of Adiong, Cairme, Magahum and Factoran from the NAPOLCOM
and the reinstatement thereto of petitioners, including Adiong, although under his original
appointment under RA 6975. As discussed earlier, an unconstitutional law is not a law at all; it
is in legal contemplation, as inoperative as though it had never been passed. There being no
vacancy created in the first place in the office of the NAPOLCOM, the appointments of
Magahum, Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities, which cannot
be the source of any rights. 32 It is noted that Magahum and Factoran were appointed after more
than two months from the time the present petition was filed with the Court, which explains
why they were originally not impleaded. Had they been interested in defending the validity of
their appointments, Magahum and Factoran could have filed a motion to intervene with this
Court. It is highly improbable that they were not aware of the present petition since their
colleagues, Cairme and Adiong, were respondents therein. The fact that they did not intervene
could only mean that they were willing to be bound by the Court’s decision in this case. In
addition, it is noted that respondents did not raise this issue when they filed their comment to
the petition on 21 September 1998, even though at that time both Magahum and Factoran were
already appointed, albeit invalidly, to the NAPOLCOM. Only after the promulgation of our 25
January 2000 decision did respondents belatedly insist that Magahum and Factoran should be
made parties to this case. It is not for a party to participate in the proceedings, submit his case
for decision and accept the judgment if it is favorable to him but attack it for any reason when
it is adverse. 33

In the event that the Court should affirm its decision, respondents pray that the Court apply the
ruling in Mayor v. Macaraig 34 which provided that –

In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel
M. Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled
unconstitutional and void; however, to avoid displacement of any of the incumbent
Commissioners now serving, it not appearing that any of them is unfit or has given cause for
removal, and conformably to the alternative prayer of the petitioners themselves, it is ORDERED
that said petitioners be paid all salaries, benefits and emoluments accruing to them for the
unexpired portions of their six-year terms and allowed to enjoy retirement benefits under
applicable laws, pursuant to RA No. 910 and this Court’s Resolution in Ortiz v. Commission on
Elections, G.R. No. 79857, 161 SCRA 812;

xxx

We cannot grant respondents’ prayer for the application of the abovequoted dispositive portion
of Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of
distinction – unlike in Mayor, petitioners herein did not make any alternative prayer for the
payment of the salaries, benefits, and emoluments accruing to them for the unexpired portions
of their terms in lieu of reinstatement. Contrary to respondents’ contention, the general prayer
of petitioners for “such other reliefs just and equitable” cannot be deemed as an alternative to
their specific prayer for reinstatement. We agree with petitioners’ view that any remedy
necessarily included in this general phrase should be consistent with the specific prayers of
petitioners.1âwphi1.nêt

Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates
section 16 35 of such law. 36 Once again, respondents did not raise this issue in their comment to
the petition, and are therefore estopped from doing so at this late stage. Moreover, the validity
of the appointments under RA 6975 was never the issue in this case and accordingly, the Court
will not pass upon the same.

WHEREFORE, respondents’ motion for reconsideration is hereby DENIED. However, it is hereby

clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival L.
Adiong to the NAPOLCOM, together with petitioners herein, pursuant to his appointment under
RA 6975.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 81954 August 8, 1989

CESAR Z. DARIO, petitioner,

vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in
their respective capacities as Commissioner of Customs, Secretary of Finance, and Executive
Secretary, respondents.

G.R. No. 81967 August 8, 1989

VICENTE A. FERIA JR., petitioner,

vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON. CATALINO MACARAIG, JR., in
their respective capacities as Commissioner of Customs, Secretary of Finance, and Executive
Secretary, respondents.

G.R. No. 82023 August 8, 1989

ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A. AZARRAGA, RENATO

DE JESUS, NICASIO C. GAMBOA, CORAZON RALLOS NIEVES, FELICITACION R. GELUZ,
LEODEGARIO H. FLORESCA, SUBAER PACASUM, ZENAIDA LANARIA, JOSE B. ORTIZ, GLICERIO
R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS, FERMIN RODRIGUEZ, DALISAY BAUTISTA,
LEONARDO JOSE, ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO, ROBERTO ARNALDO,
ESTER TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE, LEONCIA
CATRE, ROBERTO ABADA, petitioners,
vs.
COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF CUSTOMS, respondent.

G.R. No. 83737 August 8, 1989

BENEDICTO L. AMASA and WILLIAM S. DIONISIO, petitioners,

vs.
PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission and
SALVADOR MISON, in his capacity as Commissioner of the Bureau of Customs, respondents.

G.R. No. 85310 August 8, 1989

SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,
vs.
CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO, JOSE P.,
ABCEDE, NEMECIO C., ABIOG, ELY F., ABLAZA, AURORA M., AGBAYANI, NELSON I., AGRES
ANICETO, AGUILAR, FLOR, AGUILUCHO MA. TERESA R., AGUSTIN, BONIFACIO T., ALANO, ALEX
P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA, JOSE G., ALMARIO, RODOLFO F.,
ALVEZ, ROMUALDO R., AMISTAD RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V.,
ANGELES, RICARDO S., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M.,
ARCANGEL, AGUSTIN S., JR., ARPON, ULPLIANO U., JR., ARREZA, ARTEMIO M., JR., ARROJO,
ANTONIO P., ARVISU, ALEXANDER S., ASCAÑ;O, ANTONIO T., ASLAHON, JULAHON P.,
ASUNCION, VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER R., BACAL, URSULINO C.,
BAÑ;AGA, MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE B., BARROS, VICTOR C.,
BARTOLOME, FELIPE A., BAYSAC, REYNALDO S., BELENO, ANTONIO B., BERNARDO, ROMEO
D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO, VICTOR M., BULEG, BALILIS R.,
CALNEA, MERCEDES M., CALVO, HONESTO G., CAMACHO, CARLOS V., CAMPOS, RODOLFO C.,
CAPULONG, RODRIGO G., CARINGAL, GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U.,
CARUNGCONG, ALFREDO M., CASTRO, PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL
B., CENIZAL, JOSEFINA F., CINCO, LUISITO, CONDE0, JOSE C., JR., CORCUERA, FIDEL S.,
CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ, EDUARDO S., CRUZ, EDILBERTO A.,
CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON, NORMA M.,
DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO, GODOFREDO L.,
DE CASTRO, LEOPAPA, DE GUZMAN, ANTONIO A., DE GUZMAN, RENATO E., DE LA CRUZ,
AMADO A., JR., DE LA CRUZ, FRANCISCO C., DE LA PEÑ;A, LEONARDO, DEL CAMPO, ORLANDO,
DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA, SALIC L., DIZON, FELICITAS
A., DOCTOR, HEIDY M., DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO, PERFECTO
V., JR., DUAY, JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO
A., ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H., ESPINA,
FRANCO A., ESTURCO, RODOLFO C., EVANGELINO, FERMIN I., FELIX, ERNESTO G., FERNANDEZ,
ANDREW M., FERRAREN, ANTONIO C., FERRERA, WENCESLAO A., FRANCISCO, PELAGIO S., JR.,
FUENTES, RUDY L., GAGALANG, RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO C.,
GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V., GARCIA, JUAN L., GAVIOLA, LILIAN
V., GEMPARO, SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R.,
GREGORIO, LAURO P., GUARTICO, AMMON H., GUIANG, MYRNA N., GUINTO, DELFIN C.,
HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO, LEOPOLDO H., HULAR , LANNYROSS
E., IBAÑ;EZ, ESTER C., ILAGAN, HONORATO C., INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL,
HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L., JAVIER, ROBERTO S., JAVIER,
WILLIAM R., JOVEN, MEMIA A., JULIAN, REYNALDO V., JUMAMOY, ABUNDIO A., JUMAQUIAO,
DOMINGO F., KAINDOY, PASCUAL B., JR., KOH, NANIE G., LABILLES, ERNESTO S., LABRADOR,
WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN, EVANGELINE G.,
LAMPONG, WILFREDO G., LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE,
REYNALDO A., LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z., LOPEZ,
MELENCIO L., LUMBA, OLIVIA., MACAISA, BENITO T., MACAISA, ERLINDA C., MAGAT, ELPIDIO,
MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN, ROSITA D., MALIJAN,
LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON S., MANUEL, ELPIDIO R., MARAVILLA, GIL
B., MARCELO, GIL C., MARIÑ;AS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO A.,
MARTINEZ, ROMEO M., MARTINEZ, ROSELINA M., MATIBAG, ANGELINA G., MATUGAS,
ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA, PORTIA E., MEDINA, NESTOR M., MEDINA,
ROLANDO S., MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M., MIRAVALLES,
ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO, JUAN M.
III., MORALDE, ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR P.,
MORALES, SHIRLEY S., MUNAR, JUANITA L., MUÑ;OZ, VICENTE R., MURILLO, MANUEL M.,
NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO B., NAVARRO, HENRY L., NEJAL,
FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN T., OLEGARIO,
LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II,
PASCUA, ARNULFO A., PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑ;A, AIDA C., PEREZ,
ESPERIDION B., PEREZ, JESUS BAYANI M., PRE, ISIDRO A., PRUDENCIADO, EULOGIA S.,
PUNZALAN, LAMBERTO N., PURA, ARNOLD T., QUINONES, EDGARDO I., QUINTOS, AMADEO
C., JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑ;ADA, RODRIGO C., RARAS, ANTONIO
A., RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES, LIBERATO R., REYES,
MANUEL E., REYES, NORMA Z., REYES, TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V.,
ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE, ADAN I., RUANTO, REY, CRISTO C., JR.,
SABLADA, PASCASIO G., SALAZAR, SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD, PERLITA
C., SALMINGO, LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME
B., JR., SIMON, RAMON P., SINGSON, MELECIO C., SORIANO, ANGELO L., SORIANO,
MAGDALENA R., SUMULONG, ISIDRO L., JR., SUNICO, ABELARDO T., TABIJE, EMMA B., TAN,
RUDY, GOROSPE, TAN, ESTER S., TAN, JULITA S., TECSON, BEATRIZ B., TOLENTINO, BENIGNO
A., TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ, NICANOR B.,
VELARDE, EDGARDO C., VERA, AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES,
NAPOLEON K., VILLALON, DENNIS A., VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA, ANGEL A.,
JR., ACHARON, CRISTETO, ALBA, RENATO B., AMON, JULITA C., AUSTRIA, ERNESTO C., CALO,
RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C ., DONATO, ESTELITA P.,
DONATO, FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG,
MONTENEGRO, FRANCISCO M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F., TEMPLO,
CELSO, VALDERAMA, JAIME B., and VALDEZ, NORA M., respondents.

G.R. No. 85335 August 8, 1989

FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA G.

MATIBAG, LEODEGARDIO H. FLORESCA, LEONARDO A. DELA PEÑ;A, ABELARDO T. SUNICO,
MELENCIO L. LOPEZ, NEMENCIO A. MARTIN, RUDY M. AMISTAD, ERNESTO T. MATUGAS,
SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE B. ORTIZ, ARTEMIO
ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG,
ANICETO AGRES, EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F. ABIOG, RODRIGO C.
RANADA, LAURO GREGORIO, ALBERTO I. GAN, EDGARDO GALANG, RAY C. ISAIS, NICANOR B.
VASQUEZ, MANUEL ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R. MANUEL, AUXILIADOR C.
BOHOL, LEONARDO ELEVAZO, VICENTE S. CORNETA, petitioners,
vs.
COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL SERVICE
COMMISSION, respondents.

G.R. No. 86241 August 8, 1989

SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,

vs.
CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE BERNARDO S.
QUINTONG, GREGORIO P. REYES, and ROMULO C. BADILLO respondents

SARMIENTO, J.:

The Court writes finis to this contreversy that has raged bitterly for the several months. It does
so out of ligitimate presentement of more suits reaching it as a consequence of the government
reorganization and the instability it has wrought on the performance and efficiency of the
bureaucracy. The Court is apprehensive that unless the final word is given and the ground rules
are settled, the issue will fester, and likely foment on the constitutional crisis for the nation,
itself biset with grave and serious problems.

The facts are not in dispute.

On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A
NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING
THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN
ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Among other
things, Proclamation No. 3 provided:

SECTION 1. ...

The President shall give priority to measures to achieve the mandate of the people to:

(a) Completely reorganize the government, eradicate unjust and oppressive

structures, and all iniquitous vestiges of the previous regime; 1

...
Pursuant thereto, it was also provided:

SECTION 1. In the reorganization of the government, priority shall be given to measures

to promote economy, efficiency, and the eradication of graft and corruption.

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the appointment and qualification of their successors, if such is
made within a period of one year from February 25, 1986.

SECTION 3. Any public officer or employee separated from the service as a result of the
organization effected under this Proclamation shall, if entitled under the laws then in
force, receive the retirement and other benefits accruing thereunder.

SECTION 4. The records, equipment, buildings, facilities and other properties of all
government offices shall be carefully preserved. In case any office or body is abolished or
reorganized pursuant to this Proclamation, its FUNDS and properties shall be transferred
to the office or body to which its powers, functions and responsibilities substantially
pertain. 2

Actually, the reorganization process started as early as February 25, 1986, when the President,
in her first act in office, called upon "all appointive public officials to submit their courtesy
resignation(s) beginning with the members of the Supreme Court."3 Later on, she abolished the
Batasang Pambansa4 and the positions of Prime Minister and Cabinet 5 under the 1973
Constitution.

Since then, the President has issued a number of executive orders and directives reorganizing
various other government offices, a number of which, with respect to elected local officials, has
been challenged in this Court, 6and two of which, with respect to appointed functionaries, have
likewise been questioned herein. 7

On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND
REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM
CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and
demoralization among the deserving officials and employees" the ongoing government
reorganization had generated, and prescribed as "grounds for the separation/replacement of
personnel," the following:

SECTION 3. The following shall be the grounds for separation replacement of personnel:

1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil

Service Law;
 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices
Act as determined by the Mnistry Head concerned;

3) Gross incompetence or inefficiency in the discharge of functions;

4) Misuse of public office for partisan political purposes;

5) Any other analogous ground showing that the incumbent is unfit to remain in
the service or his separation/replacement is in the interest of the service.8

On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE
MINISTRY OF FINANCE." 9 Among other offices, Executive Order No. 127 provided for the
reorganization of the Bureau of Customs 10 and prescribed a new staffing pattern therefor.

Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution.

On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a

Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive
Orders," 12 prescribing the procedure in personnel placement. It also provided:

1. By February 28, 1988, the employees covered by Executive Order 127 and the
grace period extended to the Bureau of Customs by the President of the Philippines
on reorganization shall be:

a) informed of their re-appointment, or

b) offered another position in the same department or agency or

c) informed of their termination. 13

On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged
with adjudicating appeals from removals under the above Memorandum. 14 On January 26,
1988, Commissioner Mison addressed several notices to various Customs officials, in the tenor
as follows:

Sir:

Please be informed that the Bureau is now in the process of implementing the
Reorganization Program under Executive Order No. 127.

Pursuant to Section 59 of the same Executive Order, all officers and employees of the
Department of Finance, or the Bureau of Customs in particular, shall continue to perform
their respective duties and responsibilities in a hold-over capacity, and that those
 incumbents whose positions are not carried in the new reorganization pattern, or who
are not re- appointed, shall be deemed separated from the service.

In this connection, we regret to inform you that your services are hereby terminated as
of February 28, 1988. Subject to the normal clearances, you may receive the retirement
benefits to which you may be entitled under existing laws, rules and regulations.

In the meantime, your name will be included in the consolidated list compiled by the Civil
Service Commission so that you may be given priority for future employment with the
Government as the need arises.

Sincerely yours,
(Sgd) SALVADOR M. MISON
Commissioner15

As far as the records will yield, the following were recipients of these notices:

Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No.
81967; Messrs. Adolfo Caserano Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato
de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs.
Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R.
Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs.
Leonardo Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan,
Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, and
Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 16 individuals mentioned are
the private respondents in G.R. No. 85310.

As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau
of Customs were given individual notices of separation. A number supposedly sought
reinstatement with the Reorganization Appeals Board while others went to the Civil Service
Commission. The first thirty-one mentioned above came directly to this Court.

On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the
reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310, the
dispositive portion of which reads as follows:

WHEREFORE, it is hereby ordered that:

1. Appellants be immediately reappointed to positions of comparable or equivalent

rank in the Bureau of Customs without loss of seniority rights;
 2. Appellants be paid their back salaries reckoned from the dates of their illegal
termination based on the rates under the approved new staffing pattern but not
lower than their former salaries.

This action of the Commission should not, however, be interpreted as an exoneration of

the appellants from any accusation of wrongdoing and, therefore, their reappointments
are without prejudice to:

1. Proceeding with investigation of appellants with pending administrative cases,

and where investigations have been finished, to promptly, render the appropriate
decisions;

2. The filing of appropriate administrative complaints against appellants with

derogatory reports or information if evidence so warrants.

SO ORDERED. 18

On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for
reconsideration Acting on the motion, the Civil Service Commission, on September 20, 1988,
denied reconsideration. 19

On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court,
docketed, as above-stated, as G.R. No. 85310 of this Court.

On November 16,1988, the Civil Service Commission further disposed the appeal (from the
resolution of the Reorganization Appeals Board) of five more employees, holding as follows:

WHEREFORE, it is hereby ordered that:

1. Appellants be immediately reappointed to positions of comparable or equivalent

rank in the Bureau of Customs without loss of seniority rights; and

2. Appellants be paid their back salaries to be reckoned from the date of their illegal
termination based on the rates under the approved new staffing pattern but not
lower than their former salaries.

This action of the Commission should not, however, be interpreted as an exoneration of

the herein appellants from any accusation of any wrongdoing and therefore, their
reappointments are without prejudice to:

1. Proceeding with investigation of appellants with pending administrative cases, if

any, and where investigations have been finished, to promptly, render the
appropriate decisions; and
 2. The filing of appropriate administrative complaints against appellant with
derogatory reports or information, if any, and if evidence so warrants.

SO ORDERED. 20

On January 6, 1989, Commissioner Mison challenged the Civil Service Commission's Resolution
in this Court; his petitioner has been docketed herein as G.R. No. 86241. The employees ordered
to be reinstated are Senen Dimaguila, Romeo Arabe, Bemardo Quintong,Gregorio Reyes, and
Romulo Badillo. 21

On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF
CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT
REORGANIZATION," 22was signed into law. Under Section 7, thereof:

Sec. 9. All officers and employees who are found by the Civil Service Commission to have
been separated in violation of the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and shall be entitled to full pay
for the period of separation. Unless also separated for cause, all officers and employees,
including casuals and temporary 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. 23

On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by
Commissioner Mison pursuant to the ostensible reorganization subject of this controversy,
petitioned the Court to contest the validity of the statute. The petition is docketed as G.R. No.
83737.

On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had
ordered reinstated by its June 30,1988 Resolution filed their own petition to compel the
Commissioner of Customs to comply with the said Resolution. The petition is docketed as G.R.
No. 85335.

On November 29, 1988, we resolved to consolidate all seven petitions.

On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said
hearing, the parties, represented by their counsels (a) retired Justice Ruperto Martin; (b) retired
Justice Lino Patajo. (c) former Dean Froilan Bacungan (d) Atty. Lester Escobar (e) Atty. Faustino
Tugade and (f) Atty. Alexander Padilla, presented their arguments. Solicitor General Francisco
Chavez argued on behalf of the Commissioner of Customs (except in G.R. 85335, in which he
represented the Bureau of Customs and the Civil Service Commission).lâwphî1.ñèt Former
Senator Ambrosio Padilla also appeared and argued as amicus curiae Thereafter, we resolved to
require the parties to submit their respective memoranda which they did in due time.

There is no question that the administration may validly carry out a government reorganization
— insofar as these cases are concerned, the reorganization of the Bureau of Customs — by
mandate not only of the Provisional Constitution, supra, but also of the various Executive Orders
decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-1987
revolutionary government. It should also be noted that under the present Constitution, there is
a recognition, albeit implied, that a government reorganization may be legitimately undertaken,
subject to certain conditions. 24

The Court understands that the parties are agreed on the validity of a reorganization per se the
only question being, as shall be later seen: What is the nature and extent of this government
reorganization?

The Court disregards the questions raised as to procedure, failure to exhaust administrative
remedies, the standing of certain parties to sue, 25 and other technical objections, for two
reasons, "[b]ecause of the demands of public interest, including the need for stability in the
public service,"26 and because of the serious implications of these cases on the administration
of the Philippine civil service and the rights of public servants.

The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission's Resolution dated
June 30, 1988 had attained a character of finality for failure of Commissioner Mison to apply for
judicial review or ask for reconsideration seasonalbly under Presidential Decree No. 807, 27 or
under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected. The records
show that the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to
this Court pursuant to Section 39 of Presidential Decree No. 807. The records likewise show that
the Solicitor General filed a motion for reconsideration on July 15, 1988.30 The Civil Service
Commission issued its Resolution denying reconsideration on September 20, 1988; a copy of
this Resolution was received by the Bureau on September 23, 1988.31 Hence the Bureau had
until October 23, 1988 to elevate the matter on certiorari to this Court.32 Since the Bureau's
petition was filed on October 20, 1988, it was filed on time.

We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises no jurisdictional
questions, and is therefore bereft of any basis as a petition for certiorari under Rule 65 of the
Rules of Court. 33 We find that the questions raised in Commissioner Mison's petition (in G.R.
85310) are, indeed, proper for certiorari, if by "jurisdictional questions" we mean questions
having to do with "an indifferent disregard of the law, arbitrariness and caprice, or omission to
weigh pertinent considerations, a decision arrived at without rational deliberation, 34 as
distinguished from questions that require "digging into the merits and unearthing errors of
judgment 35 which is the office, on the other hand, of review under Rule 45 of the said Rules.
What cannot be denied is the fact that the act of the Civil Service Commission of reinstating
hundreds of Customs employees Commissioner Mison had separated, has implications not only
on the entire reorganization process decreed no less than by the Provisional Constitution, but
on the Philippine bureaucracy in general; these implications are of such a magnitude that it
cannot be said that — assuming that the Civil Service Commission erred — the Commission
committed a plain "error of judgment" that Aratuc says cannot be corrected by the
extraordinary remedy of certiorari or any special civil action. We reaffirm the teaching
of Aratuc — as regards recourse to this Court with respect to rulings of the Civil Service
Commission — which is that judgments of the Commission may be brought to the Supreme
Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc we declared:

It is once evident from these constitutional and statutory modifications that there is a
definite tendency to enhance and invigorate the role of the Commission on Elections as
the independent constitutional body charged with the safeguarding of free, peaceful and
honest elections. The framers of the new Constitution must be presumed to have definite
knowledge of what it means to make the decisions, orders and rulings of the Commission
"subject to review by the Supreme Court'. And since instead of maintaining that provision
intact, it ordained that the Commission's actuations be instead 'brought to the Supreme
Court on certiorari", We cannot insist that there was no intent to change the nature of
the remedy, considering that the limited scope of certiorari, compared to a review, is well
known in remedial law.36

We observe no fundamental difference between the Commission on Elections and the Civil
Service Commission (or the Commission on Audit for that matter) in terms of the constitutional
intent to leave the constitutional bodies alone in the enforcement of laws relative to elections,
with respect to the former, and the civil service, with respect to the latter (or the audit of
government accounts, with respect to the Commission on Audit). As the poll body is the "sole
judge" 37 of all election cases, so is the Civil Service Commission the single arbiter of all
controversies pertaining to the civil service.

It should also be noted that under the new Constitution, as under the 1973 Charter, "any
decision, order, or ruling of each Commission may be brought to the Supreme Court
on certiorari," 38 which, as Aratuc tells us, "technically connotes something less than saying that
the same 'shall be subject to review by the Supreme Court,' " 39 which in turn suggests an appeal
by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the
Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse
of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under
Rule 65.
While Republic Act No. 6656 states that judgments of the Commission are "final and
executory"40 and hence, unappealable, under Rule 65, certiorari precisely lies in the absence of
an appeal. 41

Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which clearly charges the
Civil Service Commission with grave abuse of discretion, a proper subject of certiorari, although
it may not have so stated in explicit terms.

As to charges that the said petition has been filed out of time, we reiterate that it has been filed
seasonably. It is to be stressed that the Solicitor General had thirty days from September 23,
1988 (the date the Resolution, dated September 20,1988, of the Civil Service Commission,
denying reconsideration, was received) to commence the instant certiorari proceedings. As we
stated, under the Constitution, an aggrieved party has thirty days within which to challenge "any
decision, order, or ruling" 42 of the Commission. To say that the period should be counted from
the Solicitor's receipt of the main Resolution, dated June 30, 1988, is to say that he should not
have asked for reconsideration But to say that is to deny him the right to contest (by a motion
for reconsideration) any ruling, other than the main decision, when, precisely, the Constitution
gives him such a right. That is also to place him at a "no-win" situation because if he did not
move for a reconsideration, he would have been faulted for demanding certioraritoo early,
under the general rule that a motion for reconsideration should preface a resort to a special civil
action. 43Hence, we must reckon the thirty-day period from receipt of the order of denial.

We come to the merits of these cases.

G.R. Nos. 81954, 81967, 82023, and 85335:

The Case for the Employees

The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy Commissioners of the
Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In
essence, he questions the legality of his dismiss, which he alleges was upon the authority of
Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows:

SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers
and employees of the Ministry shall, in a holdover capacity, continue to perform their
respective duties and responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service pursuant to
Executive Order No. 17 (1986) or Article III of the Freedom Constitution.

The new position structure and staffing pattern of the Ministry shall be approved and
prescribed by the Minister within one hundred twenty (120) days from the approval of
this Executive Order and the authorized positions created hereunder shall be filled with
regular appointments by him or by the President, as the case may be. Those incumbents
 whose positions are not included therein or who are not reappointed shall be deemed
separated from the service. Those separated from the service shall receive the retirement
benefits to which they may be entitled under existing laws, rules and regulations.
Otherwise, they shall be paid the equivalent of one month basic salary for every year of
service, or the equivalent nearest fraction thereof favorable to them on the basis of
highest salary received but in no case shall such payment exceed the equivalent of 12
months salary.

No court or administrative body shall issue any writ of preliminary injunction or

restraining order to enjoin the separation/replacement of any officer or employee
effected under this Executive Order.44

a provision he claims the Commissioner could not have legally invoked. He avers that he could
not have been legally deemed to be an "[incumbent] whose [position] [is] not included therein
or who [is] not reappointed"45 to justify his separation from the service. He contends that
neither the Executive Order (under the second paragraph of the section) nor the staffing pattern
proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner of
Customs, but, rather, increased it to three. 47 Nor can it be said, so he further maintains, that he
had not been "reappointed" 48 (under the second paragraph of the section) because
"[[r]eappointment therein presupposes that the position to which it refers is a new one in lieu
of that which has been abolished or although an existing one, has absorbed that which has been
abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismiss
public officials without cause ended on February 25, 1987,50 and that thereafter, public officials
enjoyed security of tenure under the provisions of the 1987 Constitution.51

Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the
Bureau until his separation directed by Commissioner Mison. And like Dario he claims that under
the 1987 Constitution, he has acquired security of tenure and that he cannot be said to be
covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 —
during the effectivity of the Provisional Constitution. He adds that under Executive Order No.
39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS,"52 the
Commissioner of Customs has the power "[t]o appoint all Bureau personnel, except those
appointed by the President," 53 and that his position, which is that of a Presidential appointee,
is beyond the control of Commissioner Mison for purposes of reorganization.

The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines,
say, on the other hand, that the purpose of reorganization is to end corruption at the Bureau of
Customs and that since there is no finding that they are guilty of corruption, they cannot be
validly dismissed from the service.

The Case for Commissioner Mison

In his comments, the Commissioner relies on this Court's resolution in Jose v. Arroyo54 in which
the following statement appears in the last paragraph thereof:

The contention of petitioner that Executive Order No. 127 is violative of the provision of
the 1987 Constitution guaranteeing career civil service employees security of tenure
overlooks the provisions of Section 16, Article XVIII (Transitory Provisions) which explicitly
authorize the removal of career civil service employees "not for cause but as a result of
the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this Constitution." By virtue of said provision,
the reorganization of the Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of the Constitution, and career civil service employees may be
separated from the service without cause as a result of such reorganization.55

For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense.
He further states that the deadline prescribed by the Provisional Constitution (February 25,
1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions
thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court
has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument,
Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria in the sense
that retention in the Bureau, under the Executive Order, depends on either retention of the
position in the new staffing pattern or reappointment of the incumbent, and since the dismissed
employees had not been reappointed, they had been considered legally separated. Moreover,
Mison proffers that under Section 59 incumbents are considered on holdover status, "which
means that all those positions were considered vacant." 57 The Solicitor General denies the
applicability of Palma-Fernandez v. De la Paz 58 because that case supposedly involved a mere
transfer and not a separation. He rejects, finally, the force and effect of Executive Order Nos. 17
and 39 for the reason that Executive Order No. 17, which was meant to implement the
Provisional Constitution, 59 had ceased to have force and effect upon the ratification of the 1987
Constitution, and that, under Executive Order No. 39, the dismissals contemplated were "for
cause" while the separations now under question were "not for cause" and were a result of
government reorganize organization decreed by Executive Order No. 127. Anent Republic Act
No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as
regards the reinforcement of security of tenure) since the new Constitution clearly allows
reorganization after its effectivity.

G.R. Nos. 85310 and 86241

The Position of Commissioner Mison

Commissioner's twin petitions are direct challenges to three rulings of the Civil Service
Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees
above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3)
the Resolution, dated November 16, 1988, reinstating five employees. The Commissioner's
arguments are as follows:

1. The ongoing government reorganization is in the nature of a "progressive" 60 reorganization

"impelled by the need to overhaul the entire government bureaucracy" 61 following the people
power revolution of 1986;

2. There was faithful compliance by the Bureau of the various guidelines issued by the President,
in particular, as to deliberation, and selection of personnel for appointment under the new
staffing pattern;

3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere
holdover standing, "which means that all positions are declared vacant;" 62

4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory
provisions of the 1987 Constitution;

5. Republic Act No. 6656 is of doubtful constitutionality.

The Ruling of the Civil Service Commission

The position of the Civil Service Commission is as follows:

1. Reorganizations occur where there has been a reduction in personnel or redundancy of

functions; there is no showing that the reorganization in question has been carried out for either
purpose — on the contrary, the dismissals now disputed were carried out by mere service of
notices;

2. The current Customs reorganization has not been made according to Malacañ;ang guidelines;
information on file with the Commission shows that Commissioner Mison has been appointing
unqualified personnel;

3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals;

4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.

The Court's ruling

Reorganization, Fundamental Principles of. —

I.

The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:
 Sec. 16. Career civil service employees separated from the service not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and
the reorganization following the ratification of this Constitution shag be entitled to
appropriate separation pay and to retirement and other benefits accruing to them under
the laws of general application in force at the time of their separation. In lieul thereof, at
the option of the employees, they may be considered for employment in the Government
or in any of its subdivisions, instrumentalities, or agencies, including government-owned
or controlled corporations and their subsidiaries. This provision also applies to career
officers whose resignation, tendered in line with the existing policy, had been accepted. 63

The Court considers the above provision critical for two reasons: (1) It is the only provision — in
so far as it mentions removals not for cause — that would arguably support the challenged
dismissals by mere notice, and (2) It is the single existing law on reorganization after the
ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June
10, 1988. [Nota been Executive Orders No. 116 (covering the Ministry of Agriculture & Food),
117 (Ministry of Education, Culture & Sports), 119 (Health), 120 (Tourism), 123 (Social Welfare
& Development), 124 (Public Works & Highways), 125 transportation & Communications), 126
(Labor & Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian Reform), 131
(Natural Resources), 132 (Foreign Affairs), and 133 (Trade & Industry) were all promulgated on
January 30,1987, prior to the adoption of the Constitution on February 2, 1987].64

It is also to be observed that unlike the grants of power to effect reorganizations under the past
Constitutions, the above provision comes as a mere recognition of the right of the Government
to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935
Constitution:

Section 4. All officers and employees in the existing Government of the Philippine Islands
shall continue in office until the Congress shall provide otherwise, but all officers whose
appointments are by this Constitution vested in the President shall vacate their respective
office(s) upon the appointment and qualification of their successors, if such appointment
is made within a period of one year from the date of the inauguration of the
Commonwealth of the Philippines. 65

Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government of the Republic of the
Philippines shall continue in office until otherwise provided by law or decreed by the
incumbent President of the Philippines, but all officials whose appointments are by this
Constitution vested in the Prime Minister shall vacate their respective offices upon the
appointment and qualification of their successors. 66

The Freedom Constitution is, as earlier seen, couched in similar language:

 SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the appointment and qualification of their successors, if such is
made within a period of one year from February 25, 1986.67

Other than references to "reorganization following the ratification of this Constitution," there is
no provision for "automatic" vacancies under the 1987 Constitution.

Invariably, transition periods are characterized by provisions for "automatic" vacancies. They
are dictated by the need to hasten the passage from the old to the new Constitution free from
the "fetters" of due process and security of tenure.

At this point, we must distinguish removals from separations arising from abolition of office (not
by virtue of the Constitution) as a result of reorganization carried out by reason of economy or
to remove redundancy of functions. In the latter case, the Government is obliged to prove good
faith.68 In case of removals undertaken to comply with clear and explicit constitutional
mandates, the Government is not hard put to prove anything, plainly and simply because the
Constitution allows it.

Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a
grant of a license upon the Government to remove career public officials it could have validly
done under an "automatic" vacancy-authority and to remove them without rhyme or reason.

As we have seen, since 1935, transition periods have been characterized by provisions for
"automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint
upon the Government to dismiss public servants at a moment's notice.

What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic"
vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had so
stated.

The constitutional "lapse" means either one of two things: (1) The Constitution meant to
continue the reorganization under the prior Charter (of the Revolutionary Government), in the
sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those
'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of
reorganization — the first, to its conferment or authorization under Proclamation No. 3
(Freedom Charter) and the second, to its implementation on its effectivity date (February 2,
1987).lâwphî1.ñèt But as we asserted, if the intent of Section 16 of Article XVIII of the 1987
Constitution were to extend the effects of reorganize tion under the Freedom Constitution, it
should have said so in clear terms. It is illogical why it should talk of two phases of reorganization
when it could have simply acknowledged the continuing effect of the first reorganization.
Second, plainly the concern of Section 16 is to ensure compensation for victims" of
constitutional revamps — whether under the Freedom or existing Constitution — and only
secondarily and impliedly, to allow reorganization. We turn to the records of the Constitutional
Commission:

INQUIRY OF MR. PADILLA

On the query of Mr. Padilla whether there is a need for a specific reference to
Proclamation No. 3 and not merely state "result of the reorganization following the
ratification of this Constitution', Mr. Suarez, on behalf of the Committee, replied that it is
necessary, inasmuch as there are two stages of reorganization covered by the Section.

Mr. Padilla pointed out that since the proposal of the Commission on Government
Reorganization have not been implemented yet, it would be better to use the phrase
"reorganization before or after the ratification of the Constitution' to simplify the Section.
Mr. Suarez instead suggested the phrase "as a result of the reorganization effected before
or after the ratification of the Constitution' on the understanding that the provision would
apply to employees terminated because of the reorganization pursuant to Proclamation
No. 3 and even those affected by the reorganization during the Marcos regime.
Additionally, Mr. Suarez pointed out that it is also for this reason that the Committee
specified the two Constitutions the Freedom Constitution — and the 1986 [1987]
Constitution. 69

Simply, the provision benefits career civil service employees separated from the service. And
the separation contemplated must be due to or the result of (1) the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3)
the resignations of career officers tendered in line with the existing policy and which
resignations have been accepted. The phrase "not for cause" is clearly and primarily
exclusionary, to exclude those career civil service employees separated "for cause." In other
words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the
Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:

1. the separation must not be for cause, and

2. the separation must be due to any of the three situations mentioned above.

By its terms, the authority to remove public officials under the Provisional Constitution ended
on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It Can only mean, then,
that whatever reorganization is taking place is upon the authority of the present Charter, and
necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately
stated that we are merely continuing what the revolutionary Constitution of the Revolutionary
Government had started. We are through with reorganization under the Freedom Constitution
— the first stage. We are on the second stage — that inferred from the provisions of Section 16
of Article XVIII of the permanent basic document.

This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is
apparent from the Charter's own words. It also warrants our holding in Esguerra and Palma-
Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials
and employees have acquired security of tenure, which is not a deterrent against separation by
reorganization under the quondam fundamental law.

Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the
execrated reorganizations under martial rule. And, of course, we also have the democratic
character of the Charter itself.

Commissioner Mison would have had a point, insofar as he contends that the reorganization is
open-ended ("progressive"), had it been a reorganization under the revolutionary authority,
specifically of the Provisional Constitution. For then, the power to remove government
employees would have been truly wide ranging and limitless, not only because Proclamation
No. 3 permitted it, but because of the nature of revolutionary authority itself, its totalitarian
tendencies, and the monopoly of power in the men and women who wield it.

What must be understood, however, is that notwithstanding her immense revolutionary

powers, the President was, nevertheless, magnanimous in her rule. This is apparent from
Executive Order No. 17, which established safeguards against the strong arm and ruthless
propensity that accompanies reorganizations — notwithstanding the fact that removals arising
therefrom were "not for cause," and in spite of the fact that such removals would have been
valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary
anxiety and demoralization" in the government rank and file that reorganization was causing,
and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986:

WHEREAS, in order to obviate unnecessary anxiety and demoralization among the

deserving officials and employees, particularly in the career civil service, it is necessary to
prescribe the rules and regulations for implementing the said constitutional provision to
protect career civil servants whose qualifications and performance meet the standards of
service demanded by the New Government, and to ensure that only those found corrupt,
inefficient and undeserving are separated from the government service; 71

Noteworthy is the injunction embodied in the Executive Order that dismissals should be made
on the basis of findings of inefficiency, graft, and unfitness to render public service.*

The President's Memorandum of October 14, 1987 should furthermore be considered. We

quote, in part:
 Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered
that there will be no further layoffs this year of personnel as a result of the government
reorganization. 72

Assuming, then, that this reorganization allows removals "not for cause" in a manner that would
have been permissible in a revolutionary setting as Commissioner Mison so purports, it would
seem that the Commissioner would have been powerless, in any event, to order dismissals at
the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization
theory, he would still have to come to terms with the Chief Executive's subsequent directives
moderating the revolutionary authority's plenary power to separate government officials and
employees.

Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo,
clarified. —

The controversy seems to be that we have, ourselves, supposedly extended the effects of
government reorganization under the Provisional Constitution to the regime of the 1987
Constitution. Jose v. Arroyo73 is said to be the authority for this argument. Evidently, if Arroyo
indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of Esguerra and
the later holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact, extend the
effects of reorganization under the revolutionary Charter to the era of the new Constitution?

There are a few points about Arroyo that have to be explained. First, the opinion expressed
therein that "[b]y virtue of said provision the reorganization of the Bureau of Customs under
Executive Order No. 127 may continue even after the ratification of this constitution and career
civil service employees may be separated from the service without cause as a result of such
reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose's petition 75 primarily
because it was "clearly premature, speculative, and purely anticipatory, based merely on
newspaper reports which do not show any direct or threatened injury," 76 it appearing that the
reorganization of the Bureau of Customs had not been, then, set in motion. Jose therefore had
no cause for complaint, which was enough basis to dismiss the petition. The remark anent
separation "without cause" was therefore not necessary for the disposition of the case.
In Morales v. Parades,77 it was held that an obiter dictum "lacks the force of an adjudication and
should not ordinarily be regarded as such."78

Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-blown decision,

although both are en banc cases. While a resolution of the Court is no less forceful than a
decision, the latter has a special weight.

Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was

promulgated on August 11, 1987 while Palma-Fernandez was decided on August 31, 1987.) It is
well-established that a later judgment supersedes a prior one in case of an inconsistency.
As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of
the reorganization, the first stage being the reorganization under Proclamation No. 3 — which
had already been consummated — the second stage being that adverted to in the transitory
provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of
reorganization after the effectivity of the new Constitution, we referred to the second stage of
the reorganization. Accordingly, we cannot be said to have carried over reorganization under
the Freedom Constitution to its 1987 counterpart.

Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra).

As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as
stern as reorganization under the prior Charter. Whereas the latter, sans the President's
subsequently imposed constraints, envisioned a purgation, the same cannot be said of the
reorganization inferred under the new Constitution because, precisely, the new Constitution
seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section
16 is an exception to due process and no-removal-"except for cause provided by law" principles
enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for
cause," there is no contradiction in terms here because, while the former Constitution left the
axe to fall where it might, the present organic act requires that removals "not for cause" must
be as a result of reorganization. As we observed, the Constitution does not provide for
"automatic" vacancies. It must also pass the test of good faith — a test not obviously required
under the revolutionary government formerly prevailing, but a test well-established in
democratic societies and in this government under a democratic Charter.

When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the
ratification of the 1987 Constitution, Arroyo permitted a reorganization provided that it is done
in good faith. Otherwise, security of tenure would be an insuperable implement. 80

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in
good faith. 81 As a general rule, a reorganization is carried out in "good faith" if it is for the
purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case
of a dismissal) or separation actually occurs because the position itself ceases to exist. And in
that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition,"
which is nothing else but a separation or removal, is done for political reasons or purposely to
defeat sty of tenure, or otherwise not in good faith, no valid "abolition' takes place and whatever
"abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a
change of nomenclature of positions, 82 or where claims of economy are belied by the existence
of ample funds. 83

It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are

not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a
reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds"
or conditions that call for disciplinary action.**
Good faith, as a component of a reorganization under a constitutional regime, is judged from
the facts of each case. However, under Republic Act No. 6656, we are told:

SEC. 2. No officer or employee in the career service shall be removed except for a valid
cause and after due notice and hearing. A valid cause for removal exists when, pursuant
to a bona fide reorganization, a position has been abolished or rendered redundant or
there is a need to merge, divide, or consolidate positions in order to meet the exigencies
of the service, or other lawful causes allowed by the Civil Service Law. The existence of
any or some of the following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a claim for reinstatement
or reappointment by an aggrieved party: (a) Where there is a significant increase in the
number of positions in the new staffing pattern of the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same functions
is created; (c) Where incumbents are replaced by those less qualified in terms of status of
appointment, performance and merit; (d) Where there is a reclassification of offices in
the department or agency concerned and the reclassified offices perform substantially
the same functions as the original offices; (e) Where the removal violates the order of
separation provided in Section 3 hereof. 84

It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of
it.

Reorganization of the Bureau of Customs,

Lack of Good Faith in. —

The Court finds that after February 2, 1987 no perceptible restructuring of the Customs
hierarchy — except for the change of personnel — has occurred, which would have justified (an
things being equal) the contested dismisses. The contention that the staffing pattern at the
Bureau (which would have furnished a justification for a personnel movement) is the same s
pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when
Commissioner Mison took over the Customs helm, has not been successfully
contradicted 85 There is no showing that legitimate structural changes have been made — or a
reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison
assumed office, which would have validly prompted him to hire and fire employees. There can
therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions,
but a revamp of personnel pure and simple.

The records indeed show that Commissioner Mison separated about 394 Customs personnel
but replaced them with 522 as of August 18, 1988. 86 This betrays a clear intent to "pack" the
Bureau of Customs. He did so, furthermore, in defiance of the President's directive to halt
further layoffs as a consequence of reorganization. 87Finally, he was aware that layoffs should
observe the procedure laid down by Executive Order No. 17.
We are not, of course, striking down Executive Order No. 127 for repugnancy to the
Constitution. While the act is valid, still and all, the means with which it was implemented is
not. 88

Executive Order No. 127, Specific Case of. —

With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59
thereof, "[t]hose incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service." He submits that because the 394
removed personnel have not been "reappointed," they are considered terminated. To begin
with, the Commissioner's appointing power is subject to the provisions of Executive Order No.
39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau
personnel, except those appointed by the President." 89

Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr.,
Commissioner Mison could not have validly terminated them, they being Presidential
appointees.

Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our
holding in Palma-Fernandez.

That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere
holdover status cannot mean that the positions held by them had become vacant. In Palma-
Fernandez, we said in no uncertain terms:

The argument that, on the basis of this provision, petitioner's term of office ended on 30
January 1987 and that she continued in the performance of her duties merely in a hold
over capacity and could be transferred to another position without violating any of her
legal rights, is untenable. The occupancy of a position in a hold-over capacity was
conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under
the Provisional Constitution), but advanced to February 2, 1987 when the 1987
Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R.
No. 78059, 31 August 1987). After the said date the provisions of the latter on security of
tenure govern. 90

It should be seen, finally, that we are not barring Commissioner Mison from carrying out a
reorganization under the transitory provisions of the 1987 Constitution. But such a
reorganization should be subject to the criterion of good faith.

Resume. —

In resume, we restate as follows:

1. The President could have validly removed government employees, elected or appointed,
without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De
Leon v. Esguerra, supra; Palma-Fernandez vs. De la Paz, supra); in this connection, Section 59
(on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for
termination;

2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon
their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act
No. 6656, sec. 9);

3. From February 2, 1987, the State does not lose the right to reorganize the Government
resulting in the separation of career civil service employees [CONST. (1987), supra] provided,
that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.)

G.R. No. 83737

This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge
to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens
security of tenure 91 and as far as it provides for a retroactive effect, 92 runs counter to the
transitory provisions of the new Constitution on removals not for cause.

It can be seen that the Act, insofar as it provides for reinstatament of employees separated
without "a valid cause and after due notice and hearing" 93 is not contrary to the transitory
provisions of the new Constitution. The Court reiterates that although the Charter's transitory
provisions mention separations "not for cause," separations thereunder must nevertheless be
on account of a valid reorganization and which do not come about automatically. Otherwise,
security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes
removals without cause. However, it also acknowledges the possibility of the leadership using
the artifice of reorganization to frustrate security of tenure. For this reason, it has installed
safeguards. There is nothing unconstitutional about the Act.

We recognize the injury Commissioner Mison's replacements would sustain. We also

commisserate with them. But our concern is the greater wrong inflicted on the dismissed
employees on account of their regal separation from the civil service.

WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988,
SEPTEMBER 20, 1988, NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241,
AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE AFFIRMED.

THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN
G.R. NOS. 83737, 85310 AND 86241 ARE DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS
A RESULT OF HIS NOTICES DATED JANUARY 26, 1988.

THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS

ARE ORDERED TO VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS
THAT MAY BE PROVIDED BY LAW.

NO COSTS.

IT IS SO ORDERED.

Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Griñ;o-Aquino and Medialdea, JJ., concur.

Padilla, J., took no part.

Separate Opinions

CRUZ, J., concurring:

I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While
additional comments may seem superfluous in view of the exhaustiveness of his ponencia, I
nevertheless offer the following brief observations for whatever they may be worth.

Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the
ongoing government reorganization valid because it is merely a continuation of the
reorganization begun during the transition period. The reason for this conclusion is the phrase
"and the reorganization following the ratification of the Constitution," that is to say, after
February 2, 1987, appearing in the said provision. The consequence (and I hope I have not
misread it) is that the present reorganization may still be undertaken with the same
"absoluteness" that was allowed the revolutionary reorganization although the Freedom
Constitution is no longer in force.

Reorganization of the government may be required by the legislature even independently of

specific constitutional authorization, as in the case, for example, of R.A. No. 51 and B.P. No. 129.
Being revolutionary in nature, the reorganization decreed by Article III of the Freedom
Constitution was unlimited as to its method except only as it was later restricted by President
Aquino herself through various issuances, particularly E.O. No. 17. But this reorganization, for
all its permitted summariness, was not indefinite. Under Section 3 of the said Article III, it was
allowed only up to February 29,1987 (which we advanced to February 2, 1987, when the new
Constitution became effective).
The clear implication is that any government reorganization that may be undertaken thereafter
must be authorized by the legislature only and may not be allowed the special liberties and
protection enjoyed by the revolutionary reorganization. Otherwise, there would have been no
necessity at all for the time limitation expressly prescribed by the Freedom Constitution.

I cannot accept the view that Section 16 is an authorization for the open-ended reorganization
of the government "following the ratification of the Constitution." I read the provision as merely
conferring benefits — deservedly or not — on persons separated from the government as a
result of the reorganization of the government, whether undertaken during the transition
period or as a result of a law passed thereafter. What the grants is privileges to the retirees, not
power to the provision government. It is axiomatic that grants of power are not lightly inferred,
especially if these impinge on individual rights, and I do not see why we should depart from this
rule.

To hold that the present reorganization is a continuation of the one begun during the transition
period is to recognize the theory of the public respondent that all officers and employees not
separated earlier remain in a hold-over capacity only and so may be replaced at any time even
without cause. That is a dangerous proposition that threatens the security and stability of every
civil servant in the executive department. What is worse is that this situation may
continue indefinitely as the claimed "progressive" reorganization has no limitation as to time.

Removal imports the forcible separation of the incumbent before the expiration of his term and
can be done only for cause as provided by law. Contrary to common belief, a reorganization
does not result in removal but in a different mode of terminating official relations known as
abolition of the office (and the security of tenure attached thereto.) The erstwhile holder of the
abolished office cannot claim he has been removed without cause in violation of his
constitutional security of tenure. The reason is that the right itself has disappeared with the
abolished office as an accessory following the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147;
De la Llana v. Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)

This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based on
a valid purpose, such as the promotion of efficiency and economy in the government through a
pruning of offices or the streamlining of their functions. (Cervantes v. Auditor-General, 91 Phil.
359.) Normally, a reorganization cannot be validly undertaken as a means of purging the
undesirables for this would be a removal in disguise undertaken en masse to circumvent the
constitutional requirement of legal cause. (Eradication of graft and corruption was one of the
expressed purposes of the revolutionary organization, but this was authorized by the Freedom
Constitution itself.) In short, a reorganization, to be valid, must be done in good faith. (Urgelio
v. Osmena, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Carino v. ACCFA, 18 SCRA 183.)

A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc.
issued by the government and the action purportedly taken thereunder does not by itself prove
good faith. We know only too well that these instructions, for all their noble and sterile
purposes, are rarely followed in their actual implementation. The reality in this case, as the
majority opinion has pointed out and as clearly established in the hearing we held, is that the
supposed reorganization was undertaken with an eye not to achieving the avowed objectives
but to accommodating new appointees at the expense of the dislodged petitioners. That was
also the finding of the Civil Service Commission, to which we must accord a becoming respect
as the constitutional office charged with the protection of the civil service from the evils of the
spoils system.

The present administration deserves full support in its desire to improve the civil service, but
this objective must be pursued in a manner consistent with the Constitution. This praiseworthy
purpose cannot be accomplished by an indiscriminate reorganization that will sweep in its wake
the innocent along with the redundant and inept, for the benefit of the current favorites.

MELENCIO-HERRERA, J., dissenting:

The historical underpinnings of Government efforts at reorganization hark back to the people
power phenomenon of 22-24 February 1986, and Proclamation No. 1 of President Corazon C.
Aquino, issued on 25 February 1986, stating in no uncertain terms that "the people expect a
reorganization of government." In its wake followed Executive Order No. 5, issued on 12 March
1986, "Creating a Presidential Commission on Government Reorganization," with the following
relevant provisions:

WHEREAS, there is need to effect the necessary and proper changes in the organizational
and functional structures of the national and local governments, its agencies and
instrumentalities, including government-owned and controlled corporations and their
subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of
public services

xxx xxx xxx

Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary,

the reorganization of the national and local governments, its agencies and
instrumentalities including government-owned or controlled corporations and their
subsidiaries.

xxx xxx xxx (Emphasis supplied)

Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom
Constitution, declaring, in part, in its Preamble as follows:

WHEREAS, the direct mandate of the people as manifested by their extraordinary action
demands the complete reorganization of the government, ... (Emphasis supplied)
and pertinently providing:

ARTICLE II

Section I

xxx xxx xxx

The President shall give priority to measures to achieve the mandate of the people to:

(a) Completely reorganize the government and eradicate unjust and oppressive
structures, and all iniquitous vestiges of the previous regime;" (Emphasis supplied)

xxx xxx xxx

ARTICLE III — GOVERNMENT REORGANIZATION

Section 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their successors, if such
is made within a period of one year from February 25, 1986.

Section 3. Any public office or employee separated from the service as a result of the
reorganization effected under this Proclamation shall, if entitled under the laws then in
force, receive the retirement and other benefits accruing thereunder. (Emphasis ours)

On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the
Implementation of Section 2, Article III of the Freedom Constitution' providing, inter alia, as
follows:

Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution,
the Head of each Ministry shall see to it that the separation or replacement of officers
and employees is made only for justifiable reasons, to prevent indiscriminate dismissal, of
personnel in the career civil service whose qualifications and performance meet the
standards of public service of the New Government.

xxx xxx xxx

The Ministry concerned shall adopt its own rules and procedures for the review and
assessment of its own personnel, including the identification of sensitive positions which
require more rigid assessment of the incumbents, and shall complete such
review/assessment as expeditiously as possible but not later than February 24, 1987 to
prevent undue demoralization in the public service.
 Section 2. The Ministry Head concerned, on the basis of such review and assessment shall
determine who shall be separated from the service. Thereafter, he shall issue to the
official or employee concerned a notice of separation which shall indicate therein the
reason/s or ground /s for such separation and the fact that the separated official or
employee has the right to file a petition for reconsideration pursuant to this Order.
Separation from the service shall be effective upon receipt of such notice, either
personally by the official or employee concerned or on his behalf by a person of sufficient
discretion.

Section 3. The following shall be the grounds for separation/ replacement of personnel:

1. Existence of a case for summary dismissal pursuant to Section 40 of the

Civil Service Law;

2. Existence of a probable cause for violation of the Anti-Graft and Corrupt

Practice Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of Public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain
in the service or his separation/replacement is in the interest of the service.

Section 11. This Executive Order shall not apply to elective officials or those designated to
replace them, presidential appointees, casual and contractual employees, or officials and
employees removed pursuant to disciplinary proceedings under the Civil Service Law and
rules, and to those laid off as a result of the reorganization undertaken pursuant to
Executive Order No. 5. (Emphasis supplied)

On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers
and Functions of the Commissioner of Customs", as follows:

xxx xxx xxx

SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he

is hereby authorized, subject to the Civil Service Law and its implementing rules and
regulations:

a) To appoint all Bureau personnel, except those appointed by the President;

b) To discipline, suspend, dismiss or otherwise penalize erring Bureau

officers and employees;
 c) To act on all matters pertaining to promotion, transfer, detail,
reassignment, reinstatement, reemployment and other personnel action,
involving officers and employees of the Bureau of Customs.

xxx xxx xxx

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance."
Similar Orders, approximately thirteen (13) in all, 1 were issued in respect of the other executive
departments. The relevant provisions relative to the Bureau of Customs read:

RECALLING that the reorganization of the government is mandated expressly in Article II,
Section l(a) and Article III of the Freedom Constitution;

HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the
necessary and proper changes in the organizational and functional structures of the
government, its agencies and instrumentalities, be effected in order to promote efficiency
and effectiveness in the delivery of public services;

BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more

capable and responsive, organizationally and functionally, in its primary mandate of
judiciously generating and efficiently managing the financial resources of the
Government, its subdivisions and instrumentalities in order to attain the socio-economic
objectives of the national development programs.

xxx xxx xxx

SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry,

is hereby reorganized, structurally and functionally, in accordance with the provisions of
this Executive Order.

SEC. 33. Bureau of Customs.

... Executive Order No. 39 dated 6 August 1986 which grants autonomy to the
Commissioner of Customs in matters of appointment and discipline of Customs
personnel shall remain in effect.

SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural
organization as herein provided and all positions thereof are hereby deemed abolished. ...
Their personnel shall be entitled to the benefits provided in the second paragraph of
Section 59 hereof.

SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers
and employees of the Ministry shall, in a holdover capacity, continue to perform their
respective duties and responsibilities and receive the corresponding salaries and
 benefits unless in the meantime they are separated from government service pursuant to
executive Order No. 17 (1986) or article III of the Freedom Constitution.

The new position structure and staffing pattern of the ministry shall be approved and
prescribed by the Minister within one hundred twenty (120) days from the approval of
this Executive Order and the authorized positions created hereunder shall be filled with
regular appointments by him or by the President, as the case may be. Those incumbents
whose positions are not included therein or who are not reappointed shall be deemed
separated from the service. Those separated from the service shall receive the retirement
benefits to which they may be entitled under the existing laws, rules and regulations.
Otherwise, they shall be paid the equivalent of one month basic salary for every year of
service or the equivalent nearest fraction thereof favorable to them on the basis of
highest salary received, but in no case shall such payment exceed the equivalent of 12
months salary.

No court or administrative body shall issue any writ or preliminary junction or restraining
order to enjoin the separation/replacement of any officer or employee affected under
this Executive Order.

Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed or modified
accordingly.

xxx xxx xxx (Emphasis ours)

On 2 February 1987, the present Constitution took effect (De Leon, et al., vs. Esguerra, G.R. No.
78059, August 31, 1987153 SCRA 602). Reorganization in the Government service pursuant to
Proclamation No. 3, supra, was provided for in its Section 16, Article XVIII entitled Transitory
Provisions, reading:

Section 16. Career civil service employees separated from the service not for cause but as
a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and
the reorganization following the ratification of this Constitution shall be entitled to
appropriate separation pay and to retirement and other benefits accruing to them under
the laws of general application in force at the time of their separation. In lieu thereof, at
the option of the employees, they may be considered for employment in the Government
or in any of its subdivisions, instrumentalities, or agencies, including government owned
or controlled corporations and their subsidiaries. Ms provision also applies to career
officers whose resignation, tendered in line with the existing policy, has been accepted.

On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the
Department of Finance for approval the proposed "position structure and staffing pattern" of
the Bureau of Customs. Said Department gave its imprimatur. Thereafter, the staffing pattern
was transmitted to and approved by the Department of Budget and Management on 7
September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions
while under the new staffing pattern, there are 6,530 positions CSC Resolution in CSC Case No.
1, dated 20 September 1988, pp. 3-4).

On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.

On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of

Reorganization Executive Orders" was issued reading, insofar as revelant to these cases, as
follows:

It is my concern that ongoing process of government reorganization be conducted in a

manner that is expeditious, as well as sensitive to the dislocating consequences arising
from specific personnel decisions.

The entire process of reorganization, and in particular the process of separation from
service, must be carried out in the most humane manner possible.

For this purpose, the following guidelines shall be strictly followed:

1. By October 21, 1987, all employees covered by the Executive Orders for
each agency on reorganization shall be:

a. informed of their reappointment or

b. offered another position in the same department/ agency or

c. informed of their termination.

2. In the event of an offer for a lower position, there will be no reduction in

the salary.

xxx xxx xxx

4. Each department/agency shall constitute a Reorganization Appeals Board

at the central office, on or before October 21, 1987, to review or reconsider
appeals or complaints relative to reorganization. All cases submitted to the
Boards shall be resolved subject to the following guidelines:

a. publication or posting of the appeal procedure promulgated by the

Department Secretary;

b. adherence to due process;

 c. disposition within 30 days from submission of the case;

d written notification of the action taken and the grounds thereof.

Action by the Appeals Review Board does not preclude appeal to the Civil Service
Commission.

5. Placement in the new staffing pattern of incumbent personnel shall be

completed prior to the hiring of new personnel, if any.

xxx xxx xxx (Emphasis ours)

On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until
the end of February 1988 within which to completely undertake the reorganization of the
Bureau of Customs pursuant to Executive Order No. 127 dated 30 January 1987. Said request
was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22 December
1987.

On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum
"Re: Guidelines on the Implementation of Reorganization Executive Orders" was issued in the
same tenor as the Malacanang Memorandum of 2 October 1987, providing inter alia:

To effectively implement the reorganization at the Bureau of Customs, particularly in the

selection and placement of personnel, and insure that the best qualified and most
competent personnel in the career service are retained, the following guidelines are
hereby prescribed for the guidance of all concerned

1. By February 28, 1988 all employees covered by Executive Order No. 127 and the
grace period extended to the Bureau of Customs by the President of the Philippines
on reorganization shall be:

a. informed of their reappointment, or

b. offered another position in the same department or agency or

c. informed of their termination.

2. In the event of termination, the employee shall:

a. be included in a consolidated list compiled by the Civil Service Commission.

All departments who are recruiting shall give preference to the employees in
the list; and

b. continue to receive salary and benefits until February 28, 1988, and
 c. be guaranteed the release of separation benefits within 45 days from
termination and in no case later than June 15, 1988.

xxx xxx xxx (Emphasis supplied)

It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the
Malacanang Guidelines of 2 October 1987 in that the employees concerned were merely to be
informed of their termination.

On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau

of Customs officers and employees effective on 28 February 1988.

As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials
and employees of the Bureau of Customs (CSC Resolution in CSC Case No. 1, dated 20 September
1988, p. 6). In fact, in a letter dated 27 January 1988, Commissioner Mison recommended Jose
M. Balde for appointment to President Aquino as one of three (3) Deputy Commissioners under
Executive Order No. 127.

In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act
to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation
of Government Reorganization" was passed by Congress on 9 June 1988. The President signed
it into law on 10 June 1988 and the statute took effect on 29 June 1988.

On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the
provisions of Republic Act No. 6656. The relevant provisions thereof read:

SECTION 1. It is hereby declared the policy of the State to protect the security of tenure
of civil service officers and employees in the reorganization of the various agencies of the
National government ....

SECTION 2. No officer or employee in the career service shall be removed except for a valid
cause and after due notice and hearing. A valid cause for removal exists when, pursuant
to a bona fide reorganization, a position has been abolished or rendered redundant or
there is a need to merge, divide, or consolidate positions in order to meet the exigencies
of the service, or other lawful causes allowed by the Civil Service Law. The existence of
any or some of the following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a claim for reinstatement
or reappointment by an aggrieved party:

(a) Where there is a significant increase in the number of positions in the new
staffing pattern of the department or agency concerned;
 (b) Where an office is abolished and another performing substantially the same
functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of
appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency

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

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

xxx xxx xxx

SECTION 9. All officers and employees who are found by the Civil Service Commission to
have been separated in violation of the provisions of this Act, shall be ordered
reinstated or reappointed as the case may be without loss of seniority and shall be
entitled to full pay for the period of separation. Unless also separated for cause, all
officers and employees, including casuals and temporary 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.

xxx xxx xxx

SECTION 11. The executive branch of the government shall implement reorganization
schemes within a specified period of time authorized by law.

In the case of the 1987 reorganization of the executive branch, all departments and
agencies which are authorized by executive orders promulgated by the President to
reorganize shall have ninety (90) days from the approval of this Act within which to
implement their respective reorganization plans in accordance with the provisions of this
Act.

xxx xxx xxx

 SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the
provisions of this Act are hereby repealed or modified accordingly. The rights and benefits
under this Act shall be retroactive as of June 30, 1987.

xxx xxx xxx (Emphasis ours)

Given the foregoing statutory backdrop, the issues can now be addressed.

Scope of Section 16, Art. XVIII, 1987 Constitution

Crucial to the present controversy is the construction to be given to the abovementioned

Constitutional provision (SECTION 16, for brevity), which speaks of.

Career civil service employees separated from the service not for cause

but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986

and the reorganization following the ratification of this Constitution ... (paragraphing
supplied).

To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by

Proclamation No. 3; (2) that such separation is NOT FOR CAUSE but as a result of the
reorganization pursuant to said Proclamation; and (3) that the reorganization pursuant to
Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution
during the transition period.

Separation NOT FOR CAUSE

The canon for the removal or suspension of a civil service officer or employee is that it must be
FOR CAUSE. That means a guarantee of both procedural and substantive due process. Basically,
procedural due process would require that suspension or dismissal come only after notice and
hearing. Substantive due process would require that suspension or dismissal be 'for cause'."
Bernas The Constitution of the Republic of the Philippines: A Commentary, Vol. II, First Edition,
1988, p. 334)

The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987
Constitution, which states that 'No officer or employee of the civil service shall be removed or
suspended except FOR CAUSE provided by law."

There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the
observance of both procedural and substantive due process in cases of removal of officers or
employees of the civil service. When SECTION 16 speaks, therefore, of separation from the
service NOT FOR CAUSE, it can only mean the diametrical opposite. The constitutional intent to
exempt the separation of civil service employees pursuant to Proclamation No. 3 from the
operation of Article IX-B, Section 2(3), becomes readily apparent. A distinction is explicitly made
between removal FOR CAUSE, which as aforestated, requires due process, and dismissal NOT
FOR CAUSE, which implies that the latter is not bound by the "fetters' of due process.

It is obviously for that reason that Section 16 grants separation pay and retirement benefits to
those separated NOT FOR CAUSE but as a result of the reorganization precisely to soften the
impact of the non-observance of due process. "What is envisioned in Section 16 is not a remedy
for arbitrary removal of civil servants enjoying security of tenure but some form of relief for
members of the career civil service who may have been or may be legally but involuntarily
'reorganized out' of the service or may have voluntarily resigned pursuant to the reorganization
policy" (ibid., p. 615).

Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification

By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to
Proclamation No. 3 even after ratification of the Constitution and during the transition period.
The two [2] stages contemplated, namely, (1) the stage before and (2) after ratification, refer to
the same nature of separation "NOT FOR CAUSE but as a result of Proclamation No. 3." No valid
reason has been advanced for a different treatment after ratification as the majority opines i.e.,
that separation NOT FOR CAUSE is allowed before ratification but that, thereafter, separation
can only be FOR CAUSE.

A fundamental principle of Constitutional construction is to assure the realization of the purpose

of the framers of the organic law and of the people who adopted it.

That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue
even after the ratification of the 1987 Constitution, at least transitorily, is evident from the
intent of its authors discoverable from their deliberations held on 3 October 1986 and evincing
their awareness that such reorganization had not as yet been fully implemented. Thus:

Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause 'pursuant to the provisions
of Article III of Proclamation No. 3, issued on March 25, 1986, and the reorganization.' Are
those words necessary? Can we not just say 'result of the reorganization following the
ratification of this Constitution'? In other words, must we make specific reference to
Proclamation No. 3?

Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has
been a reorganization by virtue of Proclamation No. 3. In other words, there are two
stages of reorganization covered by this section.

Mr. PADILIA. I understand there is a reorganization committee headed by a minister?

Mr. SUAREZ. Philippine Commission on Government Reorganization.

 Mr. PADILLA. But whether that has already been implemented or not, I do not believe in
it. There has been a plan, but I do not think it has been implemented. If we want to include
any previous reorganization after or before the ratification, why do we not just say
reorganization before or after the ratification' to simplify the provision and eliminate two-
and-a-half sentences that may not be necessary? And as a result of the reorganization, if
the committee feels there has been reorganization before ratification and there be
reorganization after, we just say 'before or after the ratification of this Constitution.

Mr. SUAREZ. Something like this as a result of the reorganization effected before or after
the ratification of the Constitution on the understanding, with the statement into the
records, that this would be applicable to those reorganized out pursuant to the Freedom
Constitution also.

Mr. PADILLA. That is understood if there has been a reorganization before the ratification
or a reorganization after the ratification." (RECORDS of the Constitutional Commission,
Vol. 5, p. 416) (Emphasis provided)

It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was
"one year from February 25, 1986" (Article III, Section 2), or up to February 24, 1987. Executive
Order No. 17 itself provided that the review/assessment of personnel be completed "not later
than February 24, 1987." But, confronted with the reality of the ratification of the Constitution
before that deadline without reorganization having been completed, there was need for a
provision allowing for its continuance even after ratification and until completed. It was also to
beat that deadline that EO 127 and similar issuances, providing for the reorganization of
departments of government, were all dated 30 January 1987 or prior to the plebiscite held on 2
February 1987. The intent to continue and complete the reorganizations started is self- evident
in SECTION 16.

In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a Petition for certiorari and
Prohibition to enjoin the implementation of Executive Order No. 127, we recognized that the
reorganization pursuant to Proclamation No. 3 as mandated by SECTION 16, was to continue
even after ratification when we stated:

The contention of petitioner that EO No. 127 is violative of the provision of the 1987
Constitution guaranteeing career civil service employees security of tenure overlooks the
provision of Section 16, Art. XVIII (Transitory Provisions) which explicitly authorizes the
removal of career civil service employees not for cause but as a result of the
reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of the Constitution. By virtue of said provision,
the reorganization of the Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of this Constitution and career civil service employees may be
separated from the service without cause as a result of such reorganization. (Emphasis
ours)
With due respect to the majority, we disagree with its conclusion that the foregoing
pronouncement is mere "obiter dictum."

An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way.
It is a statement of the court concerning a question which was not directly before it (In re
Hess 23 A. 2d. 298, 301, 20 N.J. Misc. 12).lâwphî1.ñèt It is language unnecessary to a
decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not
embody the resolution or determination of the court, and is made without argument or
full consideration of the point (Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is
an expression of opinion by the court or judge on a collateral question not directly
involved, (Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85)
or not necessary for the decision Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712;
211 La. 167).

In the case at bar, however, directly involved and squarely before the Court was the issue of
whether EO 127 violates Section 2(3) of Article IX-B of the 1987 Constitution against removal of
civil service employees except for cause." Petitioner batted for the affirmative of the
proposition, while respondents contended that "removal of civil service employees without
cause is allowed not only under the Provisional Constitution but also under the 1987
Constitution if the same is made pursuant to a reorganization after the ratification of the
Constitution."

It may be that the Court dismissed that Petition for being premature, speculative and purely
anticipatory" inasmuch as petitioner therein had "not received any communication terminating
or threatening to terminate his services." But that was only one consideration. The Court still
proceeded to decide all the issues adversatively contested by the parties, namely "1) that the
expiration date of February 25, 1 987 fixed by Section 2 of Proclamation No. 3 on which said
Executive order is based had already lapsed; 2) that the Executive Order has not been published
in the Official Gazette as required by Article 2 of the Civil Code and Section 1 1 of the Revised
Administrative Code; and 3) that its enforcement violates Section 2(3) of Article IX B of the 1987
Constitution against removal of civil service employees except for cause."

The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse
of the period mandated by Proclamation No. 3, and the validity of EO 127, cannot be said to be
mere "obiter." They were ultimate issues directly before the Court, expressly decided in the
course of the consideration of the case, so that any resolution thereon must be considered as
authoritative precedent, and not a mere dictum (See Valli v. US, 94 F2d 687 certiorari granted
58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455). Such
resolution would not lose its value as a precedent just because the disposition of the case was
also made on some other ground.

.....And this rule applies as to all pertinent questions although only incidentally involved,
which are presented and decided in the regular course of the consideration of the case,
 and lead up to the final conclusion (Northern Pac. Ry Co. v. Baker, D.C. Wash., 3 F. Suppl.
1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW 119; Chase v. American
Cartage Co. 186 N.W. 598; City of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368).
Accordingly, a point expressly decided does not lose its value as a precedent because the
disposition of the case is made on some other ground. (Wagner v. Com Products Refining
Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points,
the case is an authoritative precedent as to every point decided, and none of such points
can be regarded as having merely the status of a dictum (See U.S. Title Insurance and
Trust Co., Cal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35)
and one point should not be denied authority merely because another point was more
dwelt on and more fully argued and considered. (Richmond Screw Anchor Co. v. U.S. 48
S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)"

It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751),
we had stated:

The argument that, on the basis of this provision (Section 26 of Executive Order No. 119,
or the 'Reorganization Act of the Ministry of Health'), petitioner's term of office ended on
30 January 1987 and that she continued in the performance of her duties merely in a hold-
over capacity and could be transferred to another position without violating any of her
legal rights, is untenable. The occupancy of a position in a hold-over capacity was
conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under
the Provisional Constitution), but advanced to 2 February 1987 when the 1987
Constitution became effective (De Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059,
31 August 1987, 153 SCRA 602). After the d date the provisions of the latter on security
of tenure govern.

The factual situation in the two cases, however, radically differ. In the cited case, Dra. Palma-
Fernandez, the petitioner, had already been extended a permanent appointment as Assistant
Director for Professional Services of the East Avenue Medical Center but was still being
transferred by the Medical Center Chief to the Research Office against her consent. Separation
from the service as a result of reorganization was not involved. The question then arose as to
whether the latter official had the authority to transfer or whether the power to appoint and
remove subordinate officers and employees was lodged in the Secretary of Health. Related to
that issue was the vital one of whether or not her transfer, effected on 29 May 1987, was
tantamount to a removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the
Civil Service Decree, and not because she was being reorganized out by virtue of EO 119 or the
"Reorganization Act of the Ministry of Health," although the said Act was invoked after the fact.
And so it was that SECTION 16 was never mentioned, much less invoked in the Palma-Fernandez
case.
Finally, on this point, it is inaccurate for the majority to state that there were no reorganization
orders after ratification. There were, namely, EO 181 (Reorganization Act of the Civil Service
Commission), June 1, 1987; EO 193 (Reorganization Act of the Office of Energy Affairs), June 10,
1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of the
Department of Local Government), July 25, 1987; EO 297 (Reorganization Act of the Office of
the Press Secretary), July 25, 1987.

The Element of Good Faith

The majority concedes that reorganization can be undertaken provided it be in good faith but
concludes that Commissioner Mison was not in good faith.

The aforesaid conclusion is contradicted by the records.

Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of
the Bureau of Customs "structurally and functionally" and provided for the abolition of all units
and positions thereof not included in the structural organization S election 55).

As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on
24 May 1987, transmitted to the Department of Finance for approval the proposed "position
structure and staffing pattern" of the Bureau of Customs. This was approved by the Department
of Finance. Thereafter, it was transmitted to and approved by the Department of Budget and
Management on 7 September 1987 for implementation. Under the old staffing pattern, there
were 7,302 positions while under the new staffing pattern, there are 6,530 positions.

On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of

Reorganization Executive Orders" provided:

By October 21, 1987, all employees covered by the Executive orders for each agency on
reorganization shall be:

a. informed of their reappointment, or

b. offered another position in the same department or agency, or

c. informed of their termination. (emphasis supplied)

On 25 November 1987 Commissioner Mison asked for and was granted by the President an
extension up to February 1988 within which to completely undertake the reorganization of the
Bureau of Customs.

On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the

Implementation of Reorganization Executive Orders" reiterating the above- quoted portion of
the Malacanang Memorandum of 2 October 1987. Pursuant thereto, on 28 January 1988,
Commissioner Mison addressed uniform letters of termination to the employees listed on pages
15, 16 and 17 of the majority opinion, effective on 28 February 1988, within the extended period
granted.

The records further show that upon Commissioner Mison's official inquiry, Secretary of Justice
Sedfrey A. Ordoñ;ez, rendered the following Opinion:

. . . It is believed that customs employees who are reorganized out in the course of the
implementation of E.O. No. 127 (reorganizing the Department of Finance) need not be
informed of the nature and cause of their separation from the service. It is enough that
they be 'informed of their termination' pursuant to section 1(c) of the Memorandum
dated October 2, 1987 of President Aquino, which reads:

1. By October 21, 1987, all employees covered by the Executive orders for each
agency on reorganization shall be:

xxx xxx xxx

c) Informed of their terminations.

The constitutional mandate that 'no officer or employee of the civil service shall be
renewed or suspended except for cause as provided by law' (Sec. 2(4) (sic), Article IX-B of
the 1987 Constitution) does not apply to employees who are separated from office as a
result of the reorganization of that Bureau as directed in Executive Order No. 127.

xxx xxx xxx

Regarding your (third) query, the issue as to the constitutionality of Executive Order No.
127 is set at rest, after the Supreme Court resolved to dismiss the petition
for certiorari questioning its enforceability, for lack of merit (see Jose vs. Arroyo, et
al., supra). (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)

The former Chairman of the Civil Service Commission, Celerina G. Gotladera likewise periodically
consulted by Commissioner Mison, also expressed the opinion that "it is not a prerequisite prior
to the separation of an employee pursuant to reorganization that he be administratively
charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)

Moreover, the records show that the final selection and placement of personnel was done by a
Placement Committee, one of whose members is the Head of the Civil Service Commission Field
Office, namely, Mrs. Purificacion Cuerdo The appointment of employees made by Commissioner
Mison was based on the list approved by said Placement Committee.

But the majority further faults Mison for defying the President's directive to halt further layoffs
as a consequence of reorganization, citing OP Memo of 14 October 1987, reading:
 Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered
that there will be no further layoffs this year of personnel as a result of the government
reorganization. (p. 45, Decision)

The foregoing, however, must be deemed superseded by later developments, namely, the grant
to Commissioner Mison by the President on 22 December 1987 of a grace period until the end
of February 1988 within which to completely undertake the reorganization of the Bureau of
Customs, which was, in fact, accomplished by 28 February 1988.

To further show lack of good faith, the majority states that Commissioner Mison failed to
observe the procedure laid down by EO 17, supra, directing inter alia that a notice of separation
be issued to an employee to be terminated indicating therein the reason/s or ground/s for such
separation. That requirement, however, does not appear in Section 59 of EO 127, which
provides on the contrary "that those incumbents whose positions are not included in the new
position structure and staffing pattern of the Ministry or who are not reappointed shall be
deemed separated from the service." The right granted by EO 17 to an employee to be informed
of the ground for his separation must be deemed to have been revoked by the repealing clause
of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof, which are
inconsistent with this Executive Order, are hereby repealed and modified accordingly."

Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to

EO 5. Thus

The Executive Order shall not apply to elective officials or those designated to replace
them, presidential appointees, casual and contractual employees, or officials and
employees removed pursuant to desciplinary proceedings under the Civil Service law and
rules, and to those laid off as a result of reorganization undertaken pursuant to Executive
Order No. 5. (Emphasis ours)

That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory

portion reading:

Recalling that the reorganization of the government is mandated expressly by Article II,
Section 1 (a) and Article III of the Freedom Constitution;

Having in mind that pursuant to Executive order No. 5 (1986), it is directed that the
necessary and proper changes in the organizational and functional structures of the
government, its agencies and instrumentalities, be effected in order to promote efficiency
and effectiveness in the delivery of public service; (Italics supplied)

Constitutionality of Republic Act No. 6656

The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government
Reorganization," particularly Section 2 thereof, to test the good faith of Commissioner Mison.

We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes
frontally with SECTION 16.

1) SECTION 16 clearly recognizes that career service employees separated from the service by
reason of the "complete reorganization of the government" pursuant to Proclamation No. 3 may
be separated NOT FOR CAUSE. And yet, RA 6656 requires the exact opposite — separation FOR
CAUSE. It would not be remiss to quote the provision again:

SEC. 2. No officer or employee in the career service shall be removed except for a valid
cause and after due notice and hearing. A valid cause for removal exist when, pursuant
to a bona fide reorganization, a position has been abolished or rendered redundant or
there is a need to merge, divide, or consolidate positions in order to meet the exigencies
of the service, or other lawful causes allowed by the Civil Service law. The existence of
any or some of the following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a claim for reinstatement
or reappointment by an aggrieved party: (a) Where there is a significant increase in the
number of positions in the new staffing pattern of the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same functions
is created; (c) Where incumbents are replaced by those less qualified in terms of status of
appointment, performance and merit; (d) Where there is a reclassification of offices in
the department or agency concerned and the reclassified offices perform substantially
the same functions as the original offices; (e) Where the removal violates the order of
separation provided in Section 3 hereof. (Republic Act No. 6156)

The standards laid down are the "traditional" criteria for removal of employees from the career
service, e.g. valid cause, due notice and hearing, abolition of, or redundancy of offices.
Proclamation No. 3, on the other hand, effectuates the "progressive" type of reorganization
dictated by the exigencies of the historical and political upheaval at the time. The "traditional"
type is limited in scope. It is concerned with the individual approach where the particular
employee involved is charged administratively and where the requisites of notice and hearing
have to be observed. The "progressive" kind of reorganization, on the other hand, is the
collective way. It is wider in scope, and is the reorganization contemplated under SECTION 16.

2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in
SECTION 16. The benefits granted by the latter provision to employees separated NOT FOR
CAUSE but as a consequence of reorganization are "separation pay, retirement, and other
benefits accruing to them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however, allows
reinstatement. That it cannot do because under SECTION 16, it is not one of the laws "in force
at the time of their separation."

The Constitution is the paramount law to which all laws must conform. It is from the Constitution
that all statutes must derive their bearings. The legislative authority of the State must yield to
the expression of the sovereign will. No statutory enactment can disregard the Charter from
which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector of Internal
Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in providing for
retroactivity — it disregards and contravenes a Constitutional imperative. To save it, it should
be applied and construed prospectively and not retroactively notwithstanding its explicit
provision. Then, and only then, would it make good law.

Effects of Reorganization

To be sure, the reorganization could effect the tenure of members of the career service as
defined in Section 5, Article IV of Presidential Decree No. 807, and may even result in the
separation from the office of some meritorious employees. But even then, the greater good of
the greatest number and the right of the citizenry to a good government, and as they themselves
have mandated through the vehicle of Proclamation No. 3, provide the justification for the said
injury to the individual. In terms of values, the interest of an employee to security of tenure
must yield to the interest of the entire populace and to an efficient and honest government.

But a reorganized employee is not without rights. His right lies in his past services, the
entitlement to which must be provided for by law. EO 127 provides for the same in its Section
59, and so does SECTION 16 when the latter specified that career civil service employees
separated from the service not for cause:

shall be entitled to appropriate separation pay and to retirement and other benefits
accruing to them under the laws of general application in force at the time of their
separation. In lieu thereof, at the option of the employees, they may be considered for
employment in the Government or in any of its subdivisions, instrumentalities, or
agencies, including government-owned or controlled corporations and their subsidiaries.
This provision also applies to career officers whose resignation, tendered in line with the
existing policy, has been accepted.

This is a reward for the employee's past service to the Government. But this is all There is no
vested property right to be reemployed in a reorganized office.

The right to an office or to employment with government or any of its agencies is not a
vested property right, and removal therefrom will not support the question of due
process" Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service employee
does not have a constitutionally protected right to his position, which position is in the
nature of a public office, political in character and held by way of grant or privilege
 extended by government; generally he has been held to have no property right or vested
interest to which due process guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44
L Ed. 1187; Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App
2d 443, 189 NE 2d 1; Kelliheller v. NY State Civil Service Com 21 Misc 2d 1034, 194 NYS 2d
89).

To ensure, however, that no meritorious employee has been separated from the service, there
would be no harm, in fact, it could do a lot of good, if the Commissioner of Customs reviews the
evaluation and placements he has so far made and sees to it that those terminated are included
in a consolidated list to be given preference by departments who are recruiting (Section 2[a],
BOC Memorandum, January 6,1988).lâwphî1.ñèt

Conclusion

Premises considered, and subject to the observation hereinabove made, it is our considered
view that the separation from the service "NOT FOR CAUSE but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986" of the affected officers and employees
of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil Service
Commission, dated 30 June 1988, 20 September 1988, and 16 November 1988 should be SET
ASIDE for having been issued in grave abuse of discretion.

Republic Act No. 6656, in so far as it provides for retroactivity, should be declared
UNCONSTITUTIONAL for being repugnant to the letter and spirit of Section 16, Article XVIII of
the 1987 Constitution.

Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitioner

vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and
Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE N.
SARMIENTO, respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J.:

The petitioner invokes security of tenure against his claimed removal without legal cause. The
respondents assert he is not entitled to the guaranty because he is not a career official. These
are the legal issues. The facts are as follows:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment

Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2,
1990, in compliance with a request addressed by the President of the Philippines to "all
Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the President on April
3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn
over his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990,
he protested his replacement and declared he was not surrendering his office because his
resignation was not voluntary but filed only in obedience to the President's directive. On the
same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the
petitioner. Achacoso was informed thereof the following day and was again asked to vacate his
office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30,
1990. He then came to this Court for relief.

In this petition for prohibition and mandamus, this Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his
duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished from
the Non-Career Service.1 Claiming to have the rank of undersecretary, he says he comes under
Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in
the Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,

Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by
the Career Executive Service Board, all of whom are appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it
was "beyond the prerogatives of the President" to require them to submit courtesy resignations.
Such courtesy resignations, even if filed, should be disregarded for having been submitted
"under duress," as otherwise the President would have the power to remove career officials at
pleasure, even for capricious reasons. In support of this contention, he invokes Ortiz vs.
Commission on Elections,2 where we observed that "to constitute a complete and operative act
of resignation, the officer or employee must show a clear intention to relinquish" and that "a
courtesy resignation cannot properly be interpreted as a resignation in the legal sense for it is
not necessarily a reflection of a public official's intention to surrender his position." He
concludes that as his removal was illegal, there was no vacancy in the disputed office to which
respondent Sarmiento could have been validly appointed.

In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career
executive service position but submits that the petitioner himself is not a career executive
service official entitled to security of tenure. He offers the following certification from the Civil
Service Commission to show that the petitioner did not possess the necessary qualifications
when he was appointed Administrator of the POEA in 1987:

CERTIFICATION

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D.
Achacoso III has not participated in a Career Executive Service Development Program (CESDP)
and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to a rank
in the CES and is not therefore a member of the Career Executive Service.

xxx xxx xxx

(Sgd.) ELMOR D. JURIDICO

Executive Director
Reference is also made to the following rules embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career
executive service:

c. Appointment. Appointment to appropriate classes in the Career Service shall be made

by the Presidentfrom a list of career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that appointments to the
higher ranks which qualify the incumbents to assignments as undersecretary and heads
of the bureaus and offices and equivalent positions shall be with the confirmation of the
Commission on Appointments. The President may, however, in exceptional cases, appoint
any person who is not a Career Executive Service eligible, provided that such appointee
shall subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualifies in such examination. (Emphasis
supplied.)

The respondents contend that as the petitioner was not a career executive service eligible at
the time of his appointment, he came under the exception to the above rule and so was subject
to the provision that he "shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher rank until he qualifies in such
examination." Not having taken that examination, he could not claim that his appointment was
permanent and guaranteed him security of tenure in his position.

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

The Court, having considered these submissions and the additional arguments of the parties in
the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of appropriate eligibles.3

The appointment extended to him cannot be regarded as permanent even if it may be so

designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of

official functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee.4 The person named in an acting capacity accepts the position
under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official

relations known in the law of public officers as expiration of the term. His term is understood at
the outset as without any fixity and enduring at the pleasure of the appointing authority. When
required to relinquish his office, he cannot complain that he is being removed in violation of his
security of tenure because removal imports the separation of the incumbent beforethe
expiration of his term.5 This is allowed by the Constitution only when it is for cause as provided
by law. The acting appointee is separated precisely because his term has expired. Expiration of
the term is not covered by the constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there being no
need the show that the termination is for cause.6

The petitioner contends that his appointment was really intended to be permanent because
temporary appointments are not supposed to exceed twelve months and he was allowed to
serve in his position for more than three years. This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his appointment permanent. Such an appointment
did not confer on the petitioner the appropriate civil service eligibility he did not possess at the
time he was appointed, nor did it vest him with the right to security of tenure that is available
only to permanent appointees.

The case of Luego vs. Civil Service Commission7 is not applicable because the facts of that case
are different. The petitioner in Luego was qualified and was extended
a permanent appointment that could not be withdrawn on the ground that it was merely
temporary. In the case at bar, the petitioner was not eligible and therefore could be appointed
at best only in a temporary capacity. The other cases he cites, viz. Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs.
Mison,10 are also not pertinent because they also involved permanent appointees who could not
be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly
replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on
its legality. Suffice it to say that it could have been a graceful way of withdrawing him from his
office with all the formal amenities and no asperity or discord if only he had not chosen to
contest it. But it was his right to do so, of course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 130872 March 25, 1999

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners,

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa through falsification of public
documents. 1 They now seek a review of their conviction as they insist on their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his
son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB)
of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its
Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red 2 won as KB Chairman of Barangay
Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz, did not run as candidate in this electoral
exercise as he was no longer qualified for the position after having already passed the age limit
fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as
member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee
Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red
confirming his appointment and advising him further that copies of his appointment papers
would be sent to him in due time through the KB Regional Office. 3Red received the telegram on
2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the
invitation of one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco
M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his
appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram was
included in the agenda as one of the subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986. 4 But it was only on 23
April 1986, when then President Corazon C. Aquino was already in power, 5 that he forwarded
these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the
mayor to sit as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie
Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period
16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and
then authorized someone else to sign all the other payrolls for the succeeding quincenas and
claim the corresponding salaries in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his
appointment papers from President Marcos, Red was finally able to secure from the Aquino
Administration a confirmation of his appointment as KB Sectoral Representative to the
Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against
Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let
him assume the position of KB sectoral representative. After preliminary investigation, the
Ombudsman filed with the Sandiganbayan thirteen (13) Informations for estafa through
falsification of public documents against petitioners, and one (1) Information for violation of
Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz
alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on
all counts of estafa through falsification of public documents and sentenced each of them to —

a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5)

YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a
maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE
ABOVE CASES;

b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE
ABOVE CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000); and

c) perpetual special disqualification from public office in accordance with Art. 214
of the Revised Penal Code.
 . . . (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX
HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the
Municipality of Sta. Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of
office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of
the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was valid.
Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of
November 1985 and, as such, was no longer the legitimate representative of the youth sector
in the municipal council of Sta. Cruz, Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated —

. . . . when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of

his son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz
for the payroll period starting January 15, 1986, reinstating accused LENLIE
LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a
falsity when he certified that LENLIE LECAROZ was a member of the Sangguniang
Bayan. The fact is that even accused LENLIE LECAROZ himself no longer attended
the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for
January 16 to 31, 1986, did not personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal
Code which reads:

Art. 171. Falsification by public officer, employee or notary or

ecclesiastical minister. — The penalty of prision mayor and a fine not
to exceed 5,000 pesos shall be imposed upon any public officer,
employee, or notary public who, taking advantage of his official
position, shall falsify a document by committing any of the following
acts: . . . . 4. Making untruthful statements in a narration of facts.

xxx xxx xxx

Clearly, falsification of public documents has been committed by accused MAYOR

LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able
to draw salaries from the municipality to which he was not entitled for services he
had admittedly not rendered. This constitutes Estafa . . . . the deceit being the
falsification made, and the prejudice being that caused to the municipality of Sta.
Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not entitled
thereto.
 Conspiracy was alleged in the Informations herein, and the Court found the
allegation sufficiently substantiated by the evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated
his son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987,
yet he did so. He could not have had any other purpose than to enable his son
LENLIE to draw salaries thereby. This conclusion inescapable considering that the
very purpose of a payroll is precisely that — to authorize the payment of salaries.
And LENLIE LECAROZ did his part by actually drawing the salaries during the periods
covered, albeit through another person whom he had authorized.

By the facts proven, there was conspiricy in the commission of Estafa between
father and son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, the
Sandiganbayan acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to
sit as member of the SB because he was not properly appointed thereto nor had he shown to
the mayor sufficient basis for his alleged right to a seat in the municipal council. On this basis,
the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume
the position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision
filed by the accused. This prompted herein petitioners to elevate their cause to us charging that
the Sandiganbayan erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation
President by virtue of his oath taken before then Assembly woman Carmencita Reyes on 27
September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of
the KB and his coterminous term of office as KB representative to the SB had accordingly
expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer
occupy the office, even in a holdover capacity, despite the vacancy therein;

Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president
had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified
from continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the
provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative
circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in
a holdover capacity;
Fifth, in holding that the accused had committed the crime of falsification within the
contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa
of which they, had been convicted required criminal intent and malice as essential elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over,
still the trial court erred in not holding — considering the difficult legal questions involved —
that the accused acted in good faith and committed merely an error of judgment, without malice
and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that alleged
in the Information under which the accused were arraigned and tried.

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its
conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not
validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid
appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold
over after his term expired because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth
sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51
and Sec. 1 of the KB Constitution respectively provide —

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

In the case of the members of the sanggunian representing the association of

barangay councils and the president of the federation of kabataan barangay, their
terms of office shall be coterminous with their tenure as president fo their respective
association and federation.

xxx xxx xxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold
office until the last Sunday of November 1985 or such time that the newly elected
officers shall have qualified and assumed office in accordance with this
Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB
since he did not present an authenticated copy of his appointment papers; neither did he take
a valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member
of the SB although in a holdover capacity since his term had already expired. The Sandiganbayan
however rejected this postulate declaring that the holdover provision under Sec. 1 quoted
above pertains only to positions in the KB, clearly implying that since no similar provision is
found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer
implies that the office has a fixed term and the incumbent is holding onto the succeeding
term. 6 It is usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected and qualified.
Where this provision is found, the office does not become vacant upon the expiration of the
term if there is no successor elected and qualified to assume it, but the present incumbent will
carry over until his successor is elected and qualified, even though it be beyond the term fixed
by law. 7

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to
occupy his post after the expiration of his term in case his successor fails to qualify, it does, not
also say that he is proscribed from holding over. Absent an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to stay in office until his successor is
appointed or chosen and has qualified. 8 The legislative intent of not allowing holdover must be
clearly expressed or at least implied in the legislative enactment, 9 otherwise it is reasonable to
assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, 10 and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an
executive or administrative office becoming, for any period of time, wholly vacant or unoccupied
by one lawfully authorized to exercise its functions. 11This is founded on obvious considerations
of public policy, for the principle of holdover is specifically intended to prevent public
convenience from suffering because of a vacancy 12 and to avoid a hiatus in the performance of
government functions. 13

The Sandiganbayan maintained that by taking his oath of office before Assembly woman Reyes
in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie
Lecaroz. It should be noted however that under the provisions of the Administrative Code then
in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not
authorized to administer oaths. It was only after the approval of RA No. 673314 on 25 July 1989
and its subsequent publication in a newspaper of general circulation that, members of both
Houses of Congress were vested for the first time with the general authority to administer oaths.
Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the
Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no
oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the
full investiture with the office. 15 Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant.
It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie
Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was
in every aspect a de jure officer, 16 or at least a de facto officer 17 entitled to receive the salaries
and all the emoluments appertaining to the position. As such, he could not be considered an
intruder and liable for encroachment of public office. 18

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The
Revised Penal Code, are intentional felonies for which liability attaches only when it is shown
that the malefactors acted with criminal intent or malice. 19 If what is proven is mere judgmental
error on the part of the person committing the act, no malice or criminal intent can be rightfully
imputed to him. Was criminal intent then demonstrated to justify petitioners' conviction? It
does not so appear in the case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general
rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from
felonious responsibility. The exception of course is neglect in the discharge of a duty or
indifference to consequences, which is equivalent to a criminal intent, for in this instance, the
element of malicious intent is supplied by the element of negligence and imprudence. 20 In the
instant case, there are clear manifestations of good faith and lack of criminal intent on the part
of petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he
presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-
Manotoc informing him of his supposed appointment to the SB, together with a photocopy of a
"Mass Appointment." Without authenticated copies of the appointment papers, Red had no
right to assume office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz
had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed
by President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only
on 23 April 1986 during which time President Marcos had already been deposed and President
Aquino had already taken over the helm of government. On 25 March 1986 the Freedom
Constitution came into being providing in Sec. 2 of Art. III thereof that —

Sec. 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise, provided by proclamation or
executive order or upon the designation of their successors if such appointment is
made within a period of one (1) year from February 26, 1986. (emphasis supplied).

Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the
provincial governor forwarded the papers of Jowil Red to then Minister of Interior and Local
Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed
by former President Marcos. The response was the issuance of MILG Provincial Memorandum-
Circular No. 86-02 21 and Memorandum-Circular No. 86-17 22 stating that —

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective

authenticated appointments from the president, cannot, in any way, represent
their associations in any sangguniang bayan/sangguniang panlalawigan, as the case
may be, although they are still considered presidents of their federations by virtue
of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this
Ministry the appointive members of the various Sangguniang Bayan, Sangguniang
Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to
receive compensation due them under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars
virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their
positions until duly replaced either by the President herself or by the Interior Ministry. Explicit
therein was the caveat that newly elected KB Federation Presidents could not assume the right
to represent their respective associations in any Sanggunian unless their appointments were
authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to take
the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of
Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. These
consistently expressed the view espoused by the executive branch for more than thirty (30)
years that the mere fixing of the term of office in a statute without an express prohibition against
holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that
just as nature abhors a vacuum so does the law abhor a vacancy in the government. 23 Reliance
by petitioners on these opinions, as, well as on the pertinent directives of the then Ministry of
Interior and Local Government, provided them with an unassailable status of good faith in
holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and
respected in the community, would deliberately blemish his good name, and worse, involve his
own son in a misconduct for a measly sum of P23,675.00, such as this case before us. As aptly
deduced by Justice Del Rosario. 24
 If I were to commit a crime, would I involve my son in it? And if I were a town mayor,
would I ruin my name for the measly sum of P1,894.00 a month? My natural instinct
as a father to protect my own son and the desire, basic in every man, to preserve
one's honor and reputation would suggest a resounding NO to both questions. But
the prosecution ventured to prove in these thirteen cases that precisely because
they were father and son and despite the relatively small amount involved, accused
Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal
payrolls for the purpose of swindling their own town of the amount of P1,894,00 a
month, and the majority has found them guilty. I find disconhfort with this verdict
basically for the reason that there was no criminal intent on their part to falsify any
document or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good
faith. 25 In Cabungcal v. Cordova 26 we affirmed the doctrine that an erroneous interpretation of
the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that
would entitle an aggrieved party to damages against that official. We reiterated this principle
in Mabutol v. Pascual 27 which held that public officials may not be liable for damages in the
discharge of their official functions absent any bad faith. Sanders v. Veridiano II 28 expanded the
concept by declaring that under the law on public officers, acts done in the performance of
official duty are protected by the presumption of good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of
accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which
meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor
Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve
and a half (12-1/2) months was for no other purpose than to enable him to draw salaries from
the municipality. 29 There is however no evidence, documentary or otherwise, that Mayor
Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for
the first quincena of January 1986. On the contrary, it is significant that while Lenlie Lecaroz'
name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for
the next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas, and
not merely for the second half of the month which would have been the case if he was actually
"dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the succeeding
payroll period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation
of Red's appointment to and assumption of office, or the result of a mere clerical error which
was later rectified in the succeeding payroll. This however cannot be confirmed by the evidence
at hand. But since a doubt is now created about the import of such omission, the principle of
equipoise should properly apply. This rule demands that all reasonable doubt intended to
demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory
facts and circumstances are capable of two or more explanations, one of which is consistent
with the innocence of the accused and the other with his guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to support a conviction. 30

Petitioners have been convicted for falsification of public documents through an untruthful
narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be
established, the following elements must concur: (a) the offender makes in a document
statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of
the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the
perversion of truth in the narration of facts was made with the wrongful intent of injuring a third
person.

The first and third elements of the offense have not been established in this case. In approving
the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded
certifications thus —

I hereby certify on my official oath that the above payroll is correct, and that the
services above stated have been duly rendered. Payment for such services is also
hereby approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration
of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over
as member of the Sanggunian and thus entitled to the emoluments attached to the position.
This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of this kind
cannot constitute the crime of false pretenses. 31 In People v. Yanza 32 we
ruled —

Now then, considering that when defendant certified she was eligible for the
position, she practically wrote a conclusion of law which turned out to be inexact
or erroneous — not entirely groundless — we are all of the opinion that she may
not be declared guilty of falsification, specially because the law which she has
allegedly violated (Art. 171, Revised Penal Code, in connection with other
provisions), punishes the making of untruthful statements in a narration of facts —
emphasis on facts . . . . Unfortunately, she made a mistake of judgment; but she
could not be held thereby to have intentionally made a false statement of fact in
violation of Art. 171 above-mentioned.

The third element requiring that the narration of facts be absolutely false is not even adequately
satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of
the Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted
doctrine of holdover. La mera inexactitude no es bastante para integrar este delito. 33 If the
statements are not altogether false, there being some colorable truth in them, the crime of
falsification is deemed not to have been committed.
Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved
in this case. The court a quo used as indication of conspiracy the fact that the accused Mayor
certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as
a consequence thereof the latter collected his salaries. These are not legally acceptable indicia,
for they are the very same acts alleged in the Information as constituting the crime of estafa
through falsification. They cannot qualify as proof of complicity or unity of criminal intent.
Conspiracy must be established separately from the crime itself and must meet the same degree
of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established by
direct evidence, for it may be inferred from the conduct of the accused before, during and after
the commission of the crime, all taken together however, the evidence must reasonably be
strong enough to show community of criminal design. 34

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its
finding of conspiracy, the Sandiganbayan stressed that the two accused are father and son.
Granting that this is not even ad hominem, we are unaware of any presumption in law that a
conspiracy exists simply because the conspirators are father and son or related by blood.

WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution
of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners
FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts of
estafa through falsification of public documents (Crim. Cases Nos. 13904-13916). The bail bonds
posted for their provisional liberty are cancelled and released. Costs de oficio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 74720 August 31, 1987

ROBERTO IGNACIO, petitioner,

vs.
LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his capacity as Minister of Local
Governments and Community Development and the CITY TREASURER OF ROXAS
CITY, respondents.

GUTIERREZ, JR., J.:

This petition for quo warranto and prohibition with prayer for preliminary and temporary
restraining order seeks to nullify the appointment or designation of private respondent Leoncio
Banate, Jr., as a member of the Sangguniang Panlungsod of the City of Roxas.

The petitioner was elected Barangay Captain of Barangay Tanza, Roxas City on May 17, 1982,
for a term of six years which commenced on June 7,1982.

Subsequently, he was elected President of the Association of Barangay Councils or Katipunang

Panlungsod Ng Mga Barangay in Roxas City, in accordance with the Local Government Code and
the implementing rules and regulations of the Katipunan.

By virtue of his being President of the Katipunang Panlungsod Ng Mga Barangay, he was
appointed a member of the Sangguniang Panlungsod or City Council of the Roxas City by then
President Marcos. As such member, he took his oath of office on June 24, 1982.

On May 9, 1986, respondent Minister Aquilino Pimentel designated Leoncio Banate, Jr., as
member of the Sangguniang Panlungsod of Roxas City, to replace the petitioner.

The petitioner contends that respondent Banate is not qualified to be a member of the
Sangguniang Panlungsod and to replace him as the representative of the Katipunan Ng Mga
Barangay of Roxas City because his membership in the city council as Katipunan President is
governed by the Local Government Code (BP Blg. 337), particularly Sec. 173 which provides that:

Sec. 173. Composition and Compensation. — (l) sangguniang panlungsod as the

legislative body of the city, shall be composed of the vice-mayor, as presiding
officer, the elected sangguniang panlungsodmembers, and the members who may
 be appointed by the President of the Philippines consisting of the presidents of
the katipunan panlungsod ng mga barangay and the kabataang barangay city
federation.

xxx xxx xxx

According to the petitioner, his appointment as member of the Sangguniang Panlungsod was by
virtue of his having been elected by the Katipunang Panlungsod Ng Mga Barangay of said city as
president thereof in accordance with BP Blg. 337 while respondent Banate is not an officer,
much less President of the Katipunang Panlungsod Ng Mga Barangay of Roxas City and has not
been duly elected for any of said positions.

The petitioner further argues that the appointment of respondent Banate by Minister Pimentel
is invalid considering that under Sec. 173 of the Local Government Code, it is the President of
the Philippines and not the Minister of Local Governments who has the power and authority to
appoint the President of the Katipunang Panlungsod Ng Mga Barangay as member of the
Sangguniang Panlungsod. He claims that this appointment power cannot be delegated to said
minister for this is a strictly personal act which the Constitution and the laws specifically ordain
to be performed by the President alone.

The Solicitor General countered that under the Local Government Code (BP Blg. 337), the terms
of office of local government officials commenced on the first Monday of March 1980 and ended
on March 28, 1986. The period was extended to June 30, 1986 by the Omnibus Election Code of
1985 (BP Blg. 881). He states that the petitioner, as an appointive local government official who
assumed office under the 1973 Constitution, is covered by the provisions of Section 2, Article III
of Proclamation No. 3 issued by President Corazon C. Aquino, which provides that "All elective
and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such is made within a period of one year from February
25, 1986."

With respect to the argument of the petitioner that the appointing power of the President of
the Philippines cannot be delegated to Minister Pimentel, the Solicitor General replied that
under the provisions of Section 2, Article III of Proclamation No. 3, dated March 25, 1986, issued
by President Corazon C. Aquino, otherwise known as the Provisional Constitution, the power to
delegate or appoint officers-in-charge in replacement of local government officials by then
Minister Aquilino Pimentel, Jr., as alter ego of the President of the Philippines, has been upheld
by this Court in several cases.

We find the petition to be meritorious. It is true that Minister Pimentel, as cabinet member, is
the alter ego of the President in appointing a public officer. His authority to designate or appoint
local officials in an acting capacity has been upheld by this Court. (Topacio, Jr., v. Pimentel, G.R.
No. 73770; Velasco v. Pimentel, G.R. No. 73811; Governors of the Philippines v. Pimentel, G. R.
No. 73823; The Municipal Mayors League of the Philippines, et al., v. Pimentel, G. R. 73940; and
Solis v. Pimentel, et al., G. R. No. 73970, April 10, 1986)

We must stress, however, that the appointee to a Sangguniang Panlungsod who sits there as a
representative of the barangays must meet the qualifications required by law for the position.
An unqualified person cannot be appointed a member even in an acting capacity.

It must be noted that the petitioner is an elected barangay captain of Barangay Tanza, Roxas
City. As barangay captain, he was subsequently elected President of the Association of Barangay
Councils of Roxas City. It was by reason of his being the president of the Association of Barangay
Councils of Roxas City that the President of the Philippines appointed him as member of the
Sangguniang Panlungsod. This was pursuant to Section 3, paragraph 1 of BP Blg. 51 (An Act
Providing for the Elective- or Appointive Positions in Various Local Governments and for Other
Purposes), which provides that:

Sec. 3. Cities. — There shall be in each city such elective local officials as provided
in their respective charters, including the city mayor, the city vice-mayor, and
the elective members of the sangguniang panlungsod, all of whom shall be elected
by the qualified voters in the city. In addition thereto, there shall be appointive
sangguniang panlungsod members consisting of the president of the city
association of barangay councils, the president of the city federation of the
kabataang barangay, and one representative each from the agricultural and
industrial labor sectors who shall be appointed by the president wherever, as
determined by the sangguniang panglungsod, said sectors are of sufficient number
in the city to warrant representative. (Emphasis supplied).

The aforequoted provision of law is complemented by Section 173 of the Local Government
Code (BP Blg. 337) cited earlier.

The private respondent in this case, not being a barangay Captain and never having been elected
president of the association of barangay councils, cannot be appointed a member of the
sangguniang panlungsod. He lacks the eligibility and qualification required by law. Subject to
constitutional restrictions, the Congress or the legislative authority may determine the eligibility
and qualification of officers and provide the method for filling them (People v. Carlos, 78 Phil.
535). The lawmaker's mandate has not been complied with.

The Authority exercised by the respondent Minister of Local Government must be read,
however, in the context of the constitutional provision upon which it is based.

Section 2, Article III of the Provisional Constitution of 1986, Proclamation No. 3 of President
Corazon C. Aquino provides:
 All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order
or upon the designation or appointment and qualification of their successors, if such
is made within a period of one year from February 25, 1986. (Emphasi supplied).

The petitioner, as one who was appointed under the 1973 Constitution continues in office until
the appointment and qualification of his successor. Since the appointment of his successor,
respondent Banate, is not valid, the tenure of petitioner Ignacio could not be terminated on that
basis alone.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby GRANTED. The

appointment/designation of private respondent Banate as member of the Sangguniang
Panlungsod of the City of Roxas representing the Katipunang Panlungsod Ng Mga Barangay is
DECLARED NULL and VOID. Petitioner ROBERTO IGNACIO is ordered REINSTATED as member of
said Sangguniang Panlungsod.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 213181 August 19, 2014

FRANCIS H. JARDELEZA Petitioner,

vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

DECISION

MENDOZA, J.:

Once again, the Couii is faced with a controversy involving the acts of an independent body,
which is considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not the
first time that the Court is called upon to settle legal questions surrounding the JBC's exercise
of its constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty
of the JBC to recommend prospective nominees for the position of Chief Justice vis-à-vis the
appointing power of the President, the period within which the same may be exercised, and the
ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court
provided an extensive discourse on constitutional intent as to the JBC’s composition and
membership.

This time, however, the selection and nomination process actually undertaken by the JBC is
being challenged for being constitutionally infirm. The heart of the debate lies not only on the
very soundness and validity of the application of JBC rules but also the extent of its discretionary
power. More significantly, this case of first impression impugns the end-result of its acts - the
shortlistfrom which the President appoints a deserving addition to the Highest Tribunal of the
land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief
Justice herself, was being impleaded as party respondent.

The Facts

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto
Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in
accordance with its rules,3 the JBC announced the opening for application or recommendation
for the said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of
the Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor
General of the Republic, for the said position. Upon acceptance of the nomination, Jardeleza
was included in the names of candidates, as well as in the schedule of public interviews. On May
29, 2014, Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received
telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member,
Aurora Santiago Lagman (Justice Lagman), who informed him that during the meetings held on
June 5 and 16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno
(Chief Justice Sereno),manifested that she would be invoking Section 2, Rule 10 of JBC-
0094 against him. Jardeleza was then directed to "make himself available" before the JBC on
June 30, 2014, during which he would be informed of the objections to his integrity.

Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the
exercise of itsconstitutional power of supervision over the JBC, issue an order: 1) directing the
JBC to give him at least five (5) working days written notice of any hearing of the JBC to which
he would be summoned; and the said notice to contain the sworn specifications of the charges
against him by his oppositors, the sworn statements of supporting witnesses, if any, and copies
of documents in support of the charges; and notice and sworn statements shall be made part of
the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in public, under the same
conditions that attend the publicinterviews held for all applicants; 3) directing the JBC to reset
the hearing scheduled on June 30, 2014 to another date; and 4) directing the JBC to disallow
Chief Justice Sereno from participating in the voting on June 30,2014 or at any adjournment
thereof where such vote would be taken for the nominees for the position vacated by Associate
Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice
Antonio T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a
classified legal memorandum (legal memorandum) that would clarify the objection to
Jardeleza’s integrity as posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno
questioned Jardeleza’s ability to discharge the duties of his office as shown in a confidential legal
memorandum over his handling of an international arbitration case for the government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice
Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio
appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno,
characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at
around 2:00o’clock in the afternoon.

Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself
against the integrity issues raised against him. He answered that he would defend himself
provided that due process would be observed. Jardeleza specifically demanded that Chief
Justice Sereno execute a sworn statement specifying her objectionsand that he be afforded the
right to cross-examine her in a public hearing. He requested that the same directive should also
be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr.
also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter.
Jardeleza, however, refused as he would not be lulled intowaiving his rights. Jardeleza then put
into record a written statement6 expressing his views on the situation and requested the JBC to
defer its meeting considering that the Court en banc would meet the next day to act on his
pending letter-petition. At this juncture, Jardeleza was excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for
deferment of the proceedings, the JBC continued its deliberations and proceeded to vote for
the nominees to be included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of
four (4) nominees which included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr.
with six (6) votes, Maria Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with
four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the
Philippine Daily Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that
there were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee
could not be included because of the invocation of Rule 10, Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal
of the JBC list of nominees to the Office of the President, "without prejudice to any remedy
available in law and the rules that petitioner may still wish to pursue."8 The said resolution was
accompanied by an extensive Dissenting Opinion penned by Associate Justice Arturo D.
Brion,9 expressing his respectful disagreement as to the position taken by the majority.

The Petition

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a

remedy in law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65
of the Rules of Court with prayer for the issuance of a Temporary Restraining Order (TRO),
seeking to compel the JBC to include him in the list ofnominees for Supreme Court Associate
Justice viceAssociate Justice Abad, on the grounds that the JBC and Chief Justice Sereno acted
in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite
having garnered a sufficient number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-
petition and its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014
or a day after the controversial JBC meeting. By the time that his letter-petition was scheduled
for deliberation by the Court en bancon July 8, 2014, the disputedshortlist had already been
transmitted to the Office of the President. He attributedthis belated action on his letter-petition
to Chief Justice Sereno, whose action on such matters, especially those impressed withurgency,
was discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention
hinges on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of
his constitutional right to due process; and 2) the JBC’s erroneous application, if not direct
violation, of its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of
his constitutional rights tothe acts of Chief Justice Sereno in raising objections against his
integrity and the manner by which the JBC addressed this challenge to his application, resulting
in his arbitrary exclusion from the list of nominees.

Jardeleza’s Position

For a better understanding of the above postulates proffered in the petition, the Court
hereunder succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading
up to and during the vote on the shortlist last June 30, 2014. When accusations against his
integrity were made twice, ex parte, by Chief Justice Sereno, without informing him of the
nature and cause thereof and without affording him an opportunity to be heard, Jardeleza was
deprived of his right to due process. In turn, the JBC violated his right to due process when he
was simply ordered to make himself available on the June 30, 2014 meeting and was told that
the objections to his integrity would be made known to him on the same day. Apart from mere
verbal notice (by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009
against his application and not on the accusations against him per se, he was deprived of an
opportunity to mount a proper defense against it. Not only did the JBC fail to ventilate questions
on his integrity during his public interview, he was also divested of his rights as an applicant
under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on
the ground of his moral fitness and, at its discretion, the Council may receive the testimony of
the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall
be allowed to cross-examine the oppositor and to offer countervailing evidence.

Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be

given due course, unless there appears on its face a probable cause sufficient to engender belief
that the allegations may be true. In the latter case, the Council may direct a discreet
investigation or require the applicant to comment thereon in writing or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the
verbalinformation conveyed to him that Associate Justice Carpio testified against him) and as to
the nature of the very accusations against him caused him to suffer from the arbitrary action by
the JBC and Chief Justice Sereno. The latter gravely abused her discretion when she acted as
prosecutor, witness and judge,thereby violating the very essence of fair play and the
Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize
the Chief Justice to assume these roles, nor does it dispense with the need to honor petitioner’s
right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of
nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2,
Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an
applicant’s integrity. Here, the lone objector constituted a part of the membership of the body
set to vote. The lone objector could be completely capable oftaking hostage the entire voting
process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of
the rule would allow a situation where all thata member has to do to veto other votes, including
majority votes, would be to object to the qualification of a candidate, without need for factual
basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to
include Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a
nomination for appointment to a judicial position requires the affirmative vote of at least a
majority of all members of the JBC. The JBC cannot disregard its own rules. Considering that
Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is that a majority
of the members of the JBC found him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s
constitutional power to appoint.Jardeleza’s exclusion from the shortlist has unlawfully
narrowed the President’s choices. Simply put, the President would be constrained to choose
from among four (4) nominees, when five (5) applicants rightfully qualified for the position. This
limits the President to appoint a member of the Court from a list generated through a process
tainted with patent constitutional violations and disregard for rules of justice and fair play. Until
these constitutional infirmities are remedied, the petitioner has the right to prevent the
appointment of an Associate Justice viceAssociate Justice Abad.

Comment of the JBC

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked
proceduraland substantive bases that would warrant favorable action by the Court. For the JBC,
certiorariis only available against a tribunal, a board or an officer exercising judicial or
quasijudicial functions.11 The JBC, in its exercise of its mandate to recommend appointees to the
Judiciary, does not exercise any of these functions. In a pending case,12 Jardeleza himself, as one
of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in
the implementation of its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a
discretionary act. For it to prosper, a petition for mandamus must, among other things, show
that the petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no
legal right to be included in the list of nominees for judicial vacancies. Possession of the
constitutional and statutory qualifications for appointment to the Judiciary may not be used to
legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s
inclusion in the shortlist is strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process.
The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and
informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to
a question on his integrity based on the way he handled a very important case for the
government. Jardeleza and Justice Lagman spoke briefly about the case and his general
explanation on how he handled the same. Secretary De Lima likewise informed him about the
content of the impending objection against his application. On these occasions, Jardeleza agreed
to explain himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light
on the allegations against him,as he chose to deliver a statement, which, in essence, requested
that his accuser and her witnesses file sworn statements so that he would know of the
allegations against him, that he be allowed to cross-examine the witnesses;and that the
procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each
member of the JBC on the issues raised against him prior to the voting process. His request for
a sworn statement and opportunity to cross-examine is not supported by a demandable right.
The JBC is not a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members
are notconcerned with the determination of his guilt or innocence of the accusations against
him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the
word "may." Even the conduct of a hearing to determine the veracity of an opposition is
discretionary on the JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of
an allegation or opposition, the JBC would not call a hearing in order to avoid undue delay of
the selection process. Each member of the JBC relies on his or her own appreciation of the
circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an
applicant is included in the shortlist when he or she obtains an affirmative vote of at least a
majority of all the members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked
because an applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief
Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative vote of all the JBC
members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against
Jardeleza was not counted. Even then, he needed the votes of the five(5) remaining members.
He only got four (4) affirmative votes. As a result,he was not included in the shortlist. Applicant
Reynaldo B. Daway, who gotfour (4) affirmative votes, was included in the shortlist because his
integrity was not challenged. As to him, the "majority rule" was considered applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General.
Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court
were signed in his official capacity. In effect, he sued the respondents to pursue a purely private
interest while retaining the office of the Solicitor General. By suing the very parties he was
tasked by law to defend, Jardeleza knowingly placed himself in a situation where his personal
interests collided against his public duties, in clear violation of the Code of Professional
Responsibility and Code of Professional Ethics. Moreover, the respondents are all public officials
being sued in their official capacity. By retaining his title as Solicitor General, and suing in the
said capacity, Jardeleza filed a suit against his own clients, being the legal defender of the
government and its officers. This runs contrary to the fiduciary relationship sharedby a lawyer
and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the
constitutional period within which a vacancy in the Court must be filled. As things now stand,
the President has until August 20, 2014 to exercise his appointment power which cannot be
restrained by a TRO or an injunctive suit.

Comment of the Executive Secretary

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the
possible unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa
higher voting threshold in cases where the integrity of an applicant is challenged. It is his position
that the subject JBC rule impairs the body’s collegial character, which essentially operates on
the basis of majority rule. The application of Section 2, Rule 10 of JBC-009 gives rise to a situation
where all that a member needs to do, in order to disqualify an applicant who may well have
already obtained a majority vote, is to object to his integrity. In effect, a member who invokes
the said provision is given a veto powerthat undermines the equal and full participation of the
other members in the nomination process. A lone objector may then override the will ofthe
majority, rendering illusory, the collegial nature of the JBC and the very purpose for which it was
created— to shield the appointment process from political maneuvering. Further, Section 2,
Rule 10 of JBC-009 may beviolative of due process for it does not allow an applicant any
meaningful opportunity to refute the challenges to his integrity. While other provisions of the
JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against
him, the subject rule does not afford the same opportunity. In this case, Jardeleza’s allegations
as to the events which transpired on June 30, 2014 obviously show that he was neither informed
ofthe accusations against him nor given the chance to muster a defense thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held
to be constitutional, the "unanimity rule" would only be operative when the objector is not a
member of the JBC. It is only in this scenario where the voting ofthe body would not be rendered
inconsequential. In the event that a JBC member raised the objection, what should have been
applied is the general rule of a majority vote, where any JBC member retains their respective
reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of
the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the
President.

Other pleadings

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its
Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely
ten minutes prior to the closing of business, the Court received the Supplemental Comment-
Reply of the JBC, this time with the attached minutes of the proceedings that led to the filing of
the petition,and a detailed "Statementof the Chief Justice on the Integrity
Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s
original Comment, as it was filed prior to the filing of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-

intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the
President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the
position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP
Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a
complaint for disbarment against Jardeleza primarily for violations of the Code of Professional
Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their
motions were merely reiterative of the positions of the JBC and were perceived to be dilatory.
The complaint for disbarment, however, was re-docketed as a separate administrative case.

The Issues

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the
resolution of one issue would necessarily affect the conclusion as to the others, the Court opts
to narrow down the questions to the very source of the discord - the correct application of
Section 2, Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.

The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise
the unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of
its application. It is only from the comment of the Executive Secretary where the possible
unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach
dictatesthat the Court must confront the source of the bleeding from which the gaping wound
presented to the Court suffers.

The issues for resolution are:

I.

WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE
SUBJECT PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY
RESTRAINING ORDER).

II

WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES
ON INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.

II.

WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC
PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.

III.

WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES

SUBMITTED TO THE PRESIDENT.

The Court’s Ruling

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

A - The Court’s Power of Supervision over the JBC

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court
was given supervisory authority over it. Section 8 reads:

Section 8.

A Judicial and Bar Council is hereby created under the supervision of the Supreme
Courtcomposed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private
sector. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is

the power of oversight, or the authority to see that subordinate officers perform their duties.It
ensures that the laws and the rules governing the conduct of a government entity are observed
and complied with. Supervising officials see to it that rules are followed, but they themselves do
not lay down such rules, nor do they have the discretion to modify or replace them. If the rules
are not observed, they may order the work done or redone, but only to conform to such rules.
They may not prescribe their own manner of execution of the act. They have no discretion on
this matter except to see to it that the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of
compliance with its rules. In this case, Jardeleza’s principal allegations in his petition merit the
exercise of this supervisory authority.

B- Availability of the Remedy of Mandamus

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to
compel the performance, when refused, of a ministerial duty, but not to compel the
performance of a discretionary duty. Mandamuswill not issue to control or review the exercise
of discretion of a public officer where the law imposes upon said public officer the right and
duty to exercise his judgment in reference to any matter in which he is required to act. It is his
judgment that is to be exercised and not that of the court.17 There is no question that the JBC’s
duty to nominate is discretionary and it may not becompelled to do something.

C- Availability of the Remedy of Certiorari

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise
judicial or quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis directed
against a tribunal exercising judicial or quasi-judicial function. "Judicial functions are exercised
by a body or officer clothed with authority to determine what the law is and what the legal rights
of the parties are with respect to the matter in controversy. Quasijudicial function is a term that
applies to the action or discretion of public administrative officers or bodies given the authority
to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from
them as a basis for their official action using discretion of a judicial nature." 18 It asserts that in
the performance of its function of recommending appointees for the judiciary, the JBC does not
exercise judicial or quasijudicial functions. Hence, the resort tosuch remedy to question its
actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it
was negated by the invocation of the "unanimity rule" on integrity in violation of his right to due
process guaranteed not only by the Constitution but by the Council’s own rules. For said reason,
the Court is of the position that it can exercise the expanded judicial power of review
vestedupon it by the 1987 Constitution. Thus:

Article VIII.

Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act
of any branch or instrumentality of the government on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch orinstrumentality of the government,
even if the latter does not exercise judicial, quasi-judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not
find passivity as an alternative. The impassemust be overcome.

II – Substantial Issues

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional
declaration that"[a] member of the judiciary must be a person of proven competence, integrity,
probity, and independence." To ensure the fulfillment of these standards in every member of
the Judiciary, the JBC has been tasked toscreen aspiring judges and justices, among others,
making certain that the nominees submitted to the President are all qualified and suitably best
for appointment. In this way, the appointing process itself is shieldedfrom the possibility of
extending judicial appointment to the undeserving and mediocre and, more importantly, to the
ineligible or disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses"
of JBC-009, that qualifications such as "competence, integrity, probity and independence are
not easily determinable as they are developed and nurtured through the years." Additionally,
"it is not possible or advisable to lay down iron-clad rules to determine the fitness of those who
aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic
situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and
principles." A set of uniform criteria had to be established in the ascertainment of "whether one
meets the minimum constitutional qualifications and possesses qualities of mind and heart
expected of him" and his office. Likewise for the sake oftransparency of its proceedings, the JBC
had put these criteria in writing, now in the form of JBC-009. True enough, guidelines have been
set inthe determination of competence,"20 "probity and independence,"21"soundness of
physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-
009, "integrity" is closely related to, or if not, approximately equated to an applicant’s good
reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and
ethical standards. That is why proof of an applicant’s reputation may be shown in certifications
or testimonials from reputable government officials and non-governmental organizations and
clearances from the courts, National Bureau of Investigation, and the police, among others. In
fact, the JBC may even conduct a discreet background check and receive feedback from the
public on the integrity, reputation and character of the applicant, the merits of which shall be
verifiedand checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity
is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing
the "unanimity rule," contemplate a doubt on the moral character of an applicant? Section 2,
Rule 10 of JBC-009 provides:

SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where
the integrity of an applicant who is not otherwise disqualified for nomination is raised or
challenged, the affirmative vote of all the Members of the Council must be obtained for the
favorable consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting
requirement is absolute in cases where the integrity of an applicant is questioned. Simply put,
when an integrity question arises, the voting requirement for his or her inclusion as a nominee
to a judicial post becomes "unanimous" instead of the "majority vote" required in the preceding
section.25 Considering that JBC-009 employs the term "integrity" as an essential qualification for
appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is,
the unanimous vote of all the members of the JBC, the Court is of the safe conclusion that
"integrity" as used in the rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-
009 envisions only a situation where an applicant’s moral fitness is challenged. It follows then
that the "unanimity rule" only comes into operation when the moral character of a person is
put in issue. It finds no application where the question is essentially unrelated to an applicant’s
moral uprightness.

Examining the "questions of integrity" made against Jardeleza

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s
case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that
during the June 30, 2014 meeting, not only the question on his actuations in the handling of a
case was called for explanation by the Chief Justice, but two other grounds as well tending to
show his lack of integrity: a supposed extra-marital affair in the past and alleged acts of insider
trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2,
Rule 10 of JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office"
as shown in a legal memorandum related to Jardeleza’s manner of representing the government
in a legal dispute. The records bear that the "unanimity rule" was initially invoked by Chief
Justice Sereno during the JBC meeting held on June 5, 2014, where she expressed her position
that Jardeleza did not possess the integrity required tobe a member of the Court.27 In the same
meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen
manner of framing the government’s position in a case and how this could have been
detrimental to the national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity
were couched in general terms. The particulars thereof were only supplied to the Court in the
JBC’s Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand to
make the accusations against him public. At the outset, the JBC declined to raise the fine points
of the integrity question in its original Comment due to its significant bearing on the country’s
foreign relations and national security. At any rate, the Court restrains itself from delving into
the details thereof in this disposition. The confidential nature of the document cited therein,
which requires the observance of utmost prudence, preclude a discussion that may possibly
affect the country’s position in a pending dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation
of Section 2, Rule 10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of
a specific legal strategy in the handling of a case bring forth a relevant and logical challenge
against his moral character? Does the "unanimity rule" apply in cases where the main point of
contention is the professional judgment sans charges or implications of immoral or corrupt
behavior?

The Court answers these questions in the negative.

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not
borne out ofa mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza
in the handling of a case, the fact remains that the basis for her invocation of the rule was the
"disagreement" in legal strategy as expressed by a group of international lawyers. The approach
taken by Jardeleza in that case was opposed to that preferred by the legal team. For said reason,
criticism was hurled against his "integrity." The invocation of the "unanimity rule" on integrity
traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was
established linking his choice of a legal strategy to a treacherous intent to trounce upon the
country’s interests or to betray the Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction
among members of the legal community. A lawyer has complete discretion on whatlegal
strategy to employ in a case entrusted to him28provided that he lives up tohis duty to serve his
client with competence and diligence, and that he exert his best efforts to protect the interests
of his client within the bounds of the law. Consonantly, a lawyer is not an insurer of victory for
clients he represents. An infallible grasp of legal principles and technique by a lawyer is a utopian
ideal. Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a
legal mind remains a legal tactic acceptable to some and deplorable to others. It has no direct
bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the
ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under
Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat
there was no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have
been a collective idea by the legal team which initially sought a different manner of presenting
the country’s arguments, and there was no showing either of a corrupt purpose on his
part.30 Even Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking
or lured by extraneous promises.31Besides, the President, who has the final say on the conduct
of the country’s advocacy in the case, has given no signs that Jardeleza’s action constituted
disloyalty or a betrayal of the country’s trust and interest. While this point does notentail that
only the President may challenge Jardeleza’s doubtful integrity, itis commonsensical to assume
that he is in the best position to suspect a treacherous agenda. The records are bereft of any
information that indicatesthis suspicion. In fact, the Comment of the Executive Secretary
expressly prayed for Jardeleza’s inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her
participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination
of Jardeleza’s professional background, while commendable, have not produced a patent
demonstration of a connection betweenthe act complained of and his integrity as a person.
Nonetheless, the Court cannot consider her invocation of Section 2, Rule 10 of JBC-009 as
conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009,
there must be a showing that the act complained of is, at the least, linked to the moral character
of the person and not to his judgment as a professional. What this disposition perceives,
therefore, is the inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its
invocation.

As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-
marital affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting
of the JBC. As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of
these issues had its origin from newspaper reports that the Chief Justice might raise issues of
"immorality" against Jardeleza.32 The Chief Justice then deduced that the "immorality" issue
referred to by the media might have been the incidents that could have transpired when
Jardeleza was still the General Counsel of San Miguel Corporation. She stated that inasmuch as
the JBC had the duty to "take every possible step to verify the qualification of the applicants," it
might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of
JBC-009? The Court nods in assent. These are valid issues.
This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which
centered onJardeleza’s stance on the tactical approach in pursuing the case for the government,
the claims of an illicit relationship and acts of insider trading bear a candid relation to his moral
character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in
extra-marital affairs was considered as a disgraceful stain on one’s ethical and moral principles.
The bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed
to adhere to the exacting standards of morality and decency which every member of the
Judiciary is expected to observe. In fact, even relationships which have never gone physical or
intimate could still be subject to charges of immorality, when a lawyer, who is married, admits
to having a relationship which was more than professional, more than acquaintanceship, more
than friendly.35 As the Court has held: Immorality has not been confined to sexual matters, but
includes conduct inconsistentwith rectitude, or indicative of corruption, indecency, depravity
and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to
opinions of respectable members of the communityand an inconsiderate attitude toward good
order and public welfare.36 Moral character is not a subjective term but one that corresponds
to objective reality.37 To have a good moral character, a person must have the personal
characteristic ofbeing good. It is not enough that he or she has a good reputation, that is, the
opinion generally entertained about a person or the estimate in which he or she is held by the
public in the place where she is known.38 Hence, lawyers are at all times subject to the watchful
public eye and community approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s

values, self-control and on the whole, sense of honor, not only because it is a bold disregard of
the sanctity of marriage and of the law, but because it erodes the public’s confidence in the
Judiciary. This is no longer a matter of an honest lapse in judgment but a dissolute exhibition of
disrespect toward sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40Manipulative devices and deceptive practices, including insider trading, throw a
monkey wrench right into the heart of the securities industry. Whensomeone trades inthe
market with unfair advantage in the form of highly valuable secret inside information, all other
participants are defrauded. All of the mechanisms become worthless. Given enough of stock
marketscandals coupled with the related loss of faith in the market, such abuses could presage
a severe drain of capital. And investors would eventuallyfeel more secure with their money
invested elsewhere.41 In its barest essence, insider trading involves the trading of securities
based on knowledge of material information not disclosed to the public at the time. Clearly, an
allegation of insider trading involves the propensity of a person toengage in fraudulent activities
that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule
10 of JBC-009. They fall within the ambit of "questions on integrity." Hence, the "unanimity rule"
may come into operation as the subject provision is worded.
The Availability of Due Process in the

Proceedings of the JBC

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the
accusations against him in writing; 2] he was not furnished the basis of the accusations, that is,
"a very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of
heeding his request for an opportunity to defend himself, the JBC considered his refusal to
explain, during the June 30, 2014 meeting, as a waiver of his right to answer the unspecified
allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of
Sections 3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of
which provides for a 10-day period from the publication of the list of candidates within which
any complaint or opposition against a candidate may be filed with the JBC Secretary; 6] Section
2 of JBC-010 requires complaints and oppositions to be in writing and under oath, copies of
which shall be furnished the candidate in order for him to file his comment within five (5) days
from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and
sequential series of steps in securing a candidate’s right to due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing
in the fulfillment of its duty to recommend. The JBC, as a body, is not required by law to hold
hearings on the qualifications of the nominees. The process by which an objection is made based
on Section 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not aim
to determine guilt or innocence akin to a criminal or administrative offense but toascertain the
fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the
proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the
application of rules of procedure which are, at the most, discretionary or optional. Finally,
Jardeleza refused to shed light on the objections against him. During the June 30, 2014 meeting,
he did not address the issues, but instead chose totread on his view that the Chief Justice had
unjustifiably become his accuser, prosecutor and judge.

The crux of the issue is on the availability of the right to due process in JBC proceedings. After a
tedious review of the parties’ respective arguments, the Court concludes that the right to due
process is available and thereby demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they
are distinct from criminal proceedings where the finding of guilt or innocence of the accused is
sine qua non. The JBC’s constitutional duty to recommend qualified nominees to the President
cannot be compared to the duty of the courts of law to determine the commission of an offense
and ascribe the same to an accused, consistent with established rules on evidence. Even the
quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s
access tothe rights afforded under the due process clause is discretionary on the part of the JBC.
While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify the conclusion that due process is not
demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he
presents proof of his scholastic records, work experience and laudable citations. His goal is to
establish that he is qualified for the office applied for. The JBC then takes every possible step to
verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified
for nomination. It ascertains the factors which entitle an applicant to become a part of the roster
from which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not
automatically denigrate an applicant’s entitlement to due process. It is well-established in
jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are
neither purely civil nor purely criminal; they involve investigations by the Court into the conduct
of one of its officers, not the trial of an action or a suit.44 Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an
officer of the Court with the end in view of preserving the purity of the legal profession and the
proper and honest administration of justice by purging the profession of members who, by their
misconduct, have proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can be no occasion
to speak of a complainant or a prosecutor.45 On the whole, disciplinary proceedings are actually
aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the
rights and privileges that membership in the legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is
availing. The Court subscribes to the view that in cases where an objection to an applicant’s
qualifications is raised, the observance of due process neither negates nor renders illusory the
fulfillment of the duty of JBC torecommend. This holding is not an encroachment on its
discretion in the nomination process. Actually, its adherence to the precepts of due process
supports and enriches the exercise of its discretion. When an applicant, who vehemently denies
the truth of the objections, is afforded the chance to protest, the JBC is presented with a clearer
understanding of the situation it faces, thereby guarding the body from making an unsound and
capriciousassessment of information brought before it. The JBC is not expected to strictly apply
the rules of evidence in its assessment of an objection against an applicant. Just the same, to
hear the side of the person challenged complies with the dictates of fairness for the only test
that an exercise of discretion must surmount is that of soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court
to examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-
010. The former provides the following provisions pertinent to this case:
SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the
applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable
conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall
submit to the Council certifications or testimonials thereof from reputable government officials
and non-governmental organizations, and clearances from the courts, National Bureau of
Investigation, police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the
integrity, reputation and character of the applicant, and receive feedback thereon from the
public, which it shall check or verify to validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant
on groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not

begiven due course, unless there appears on its face a probable cause sufficient to engender
belief that the allegations may be true. In the latter case, the Council may either direct a discreet
investigation or require the applicant to comment thereon in writing or during the interview.
[Emphases Supplied]

While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court
to hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to
Further Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and
Bar Council," JBC-010 recognizes the needfor transparency and public awareness of JBC
proceedings. In pursuance thereof, JBC-010 was crafted in this wise:

SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates
meet prima facie the qualifications for the positionunder consideration. For this purpose, it shall
prepare a long list of candidates who prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general
circulation a notice of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be
filed with the Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible
copies, together with its supporting annexes. It shall strictly relate to the qualifications of the
candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the
Judicial and Bar Council, as well as resolutions or regulations promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition
against him. The candidate shall have five (5) days from receipt thereof within which to file his
comment to the complaint or opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to
consider the qualification of the long list of candidates and the complaint or opposition against
them, if any. The Council may, on its own, conduct a discreet investigation of the background of
the candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the
shorter list of candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the
interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall
likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of
the interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members
ofthe Council can ask questions to the candidate. Among other things, the candidate can be
made to explain the complaint or opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive
session for the final deliberation on the short list of candidates which shall be sent to the Office
of the President as a basis for the exercise of the Presidential power of appointment. [Emphases
supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10
of JBC-009 are merely directory in nature as can be gleaned from the use of the word "may."
Thus, the conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the
part of the JBC. Even the conduct of a hearing to determine the veracity of an opposition is
discretionary for there are ways, besides a hearing, to ascertain the truth or falsity of allegations.
Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a hearing
when an objection to an applicant’s integrity is raised and that it may resort to other means to
accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC,
in its discretion, receives a testimony of an oppositor in a hearing, due notice shall be given to
the applicant and that shall be allowed to cross-examine the oppositor."47 Again, the Court
neither intends to strip the JBC of its discretion to recommend nominees nor proposes thatthe
JBC conduct a full-blown trial when objections to an application are submitted. Still, it is unsound
to say that, all together, the observance of due process is a part of JBC’s discretion when an
opposition to an application is made of record. While it may so rely on "other means" such as
character clearances, testimonials, and discreet investigation to aid it in forming a judgment of
an applicant’s qualifications, the Court cannot accept a situation where JBC is given a full rein
on the application of a fundamental right whenever a person’s integrity is put to question. In
such cases, an attack on the person of the applicant necessitates his right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of
JBC-010 unmistakably projects the JBC’s deference to the grave import of the right of the
applicant to be informed and corollary thereto, the right to be heard. The provisions of JBC-010,
per se, provide that: any complaint or opposition against a candidate may be filed with the
Secretary within ten (10) days thereof; the complaint or opposition shall be in writing, under
oath and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a
copy of the complaint or opposition against him; the candidate shall have five (5) days from
receipt thereof within which to file his comment to the complaint or opposition, if he so desires;
and the candidate can be made to explain the complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs
the mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due
process. While JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords
an applicant, who faces "any complaint or opposition," the right to answer the accusations
against him. This constitutes the minimum requirements of due process.

Application to Jardeleza’s Case

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza
was deprived of his right to due process in the events leading up to, and during, the vote on the
shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to
answer the allegations against him. It underscores the fact that Jardeleza was asked to attend
the June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the
said meeting, Chief Justice Sereno informed him that in connection with his candidacy for the
position of Associate Justice of the Supreme Court, the Council would like to propound questions
on the following issues raised against him: 1] his actuations in handling an international
arbitration case not compatible with public interest;48 2] reports on his extra-marital affair in
SMC; and 3] alleged insider trading which led to the "show cause" order from the Philippine
Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not
want to be "lulled into waiving his rights." Instead, he manifested that his statement be put on
record and informed the Council of the then pendency of his letter-petition with the Court en
banc. When Chief Justice Sereno informed Jardeleza that the Council would want to hear from
him on the three (3) issues against him,Jardeleza reasoned out that this was precisely the issue.
He found it irregular that he was not being given the opportunity to be heard per the JBC
rules.He asserted that a candidate must be given the opportunity to respond to the charges
against him. He urged the Chief Justice to step down from her pedestal and translate the
objections in writing. Towards the end of the meeting, the Chief Justice said that both
Jardeleza’s written and oral statements would be made part of the record. After Jardeleza was
excused from the conference, Justice Lagman suggested that the voting be deferred, but the
Chief Justice ruled that the Council had already completed the process required for the voting
to proceed.

After careful calibration of the case, the Court has reached the determination that the
application of the "unanimity rule" on integrity resulted in Jardeleza’s deprivation of his right to
due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all
situations require a trial-type proceeding. Due process is satisfied when a person is notified of
the charge against him and given an opportunity to explain or defend himself. 50 Even as
Jardeleza was verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him
and was later asked to explain himself during the meeting, these circumstances still cannot
expunge an immense perplexity that lingers in the mind of the Court. What is to become of the
procedure laid down in JBC-010 if the same would be treated with indifference and disregard?
To repeat, as its wording provides, any complaint or opposition against a candidate may be filed
with the Secretary withinten (10) days from the publication of the notice and a list of candidates.
Surely, this notice is all the more conspicuous to JBC members. Granting ex argumenti, that the
10-day period51 is only applicable to the public, excluding the JBC members themselves, this
does not discount the fact that the invocation of the first ground in the June 5, 2014 meeting
would have raised procedural issues. To be fair, several members of the Council expressed their
concern and desire to hear out Jardeleza but the application of JBC-010 did not form part of the
agenda then. It was only during the next meeting on June 16, 2014, that the Council agreed to
invite Jardeleza, by telephone, to a meeting that would be held on the same day when a
resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral
notice instead of furnishing Jardeleza a written opposition, why did the JBC not take into account
its authority to summon Jardeleza in confidence at an earlier time? Is not the Council
empowered to "take every possible step to verify the qualification of the applicants?" It would
not be amiss to state, at this point, that the confidential legal memorandum used in the
invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor
General. Safe to assume is his knowledge of the privileged nature thereof and the consequences
of its indiscriminate release to the public. Had he been privately informed of the allegations
against him based on the document and had he been ordered to respond thereto in the same
manner, Jardeleza’s right to be informed and to explain himself would have been satisfied.
What precisely set off the protest of lack of due process was the circumstance of requiring
Jardeleza to appear before the Council and to instantaneously provide those who are willing to
listen an intelligent defense. Was he given the opportunity to do so? The answer is yes, in the
context of his physical presence during the meeting. Was he given a reasonable chance to
muster a defense? No, because he was merely asked to appear in a meeting where he would
be, right then and there, subjected to an inquiry. It would all be too well to remember that the
allegations of his extra-marital affair and acts of insider trading sprung up only during the June
30, 2014 meeting. While the said issues became the object of the JBC discussion on June 16,
2014, Jardeleza was not given the idea that he should prepare to affirm or deny his past
behavior. These circumstances preclude the very idea of due process in which the right to
explain oneself is given, not to ensnare by surprise, but toprovide the person a reasonable
opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion
becomes anidle and futile exercise.

Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to
be informed of the charges against him and his right to answer the same with
vigorouscontention and active participation in the proceedings which would ultimately decide
his aspiration to become a magistrate of this Court.

Consequences

To write finisto this controversy and in view of the realistic and practical fruition of the Court’s
findings, the Court now declares its position on whether or not Jardeleza may be included in the
shortlist, just in time when the period to appoint a member of the Court is about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009
as to Jardeleza’s legal strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the
contemplation of a "question on integrity" and would have warranted the application of
the "unanimity rule," he was notafforded due process in its application.

3. The JBC, as the sole body empowered to evaluate applications for judicial posts,
exercises full discretion on its power to recommend nomineesto the President. The sui
generischaracter of JBC proceedings, however, is not a blanket authority to disregard the
due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he
was neither formally informed of the questions on his integrity nor was provided a
reasonable opportunity to prepare his defense.
With the foregoing, the Court is compelled to rule that Jardeleza should have been included in
the shortlist submitted to the President for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but
from the violation by the JBC of its own rules of procedure and the basic tenets of due process.
By no means does the Court intend to strike down the "unanimity rule" as it reflects the JBC’s
policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a
blind eye on the palpable defects in its implementation and the ensuing treatment that
Jardeleza received before the Council. True, Jardeleza has no vested right to a nomination, but
this does not prescind from the fact that the JBC failed to observe the minimum requirements
of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a
serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial
of the fundamental right of due process is apparent, a decision rendered in disregard of that
right is void for lack of jurisdiction.52 This rule may well be applied to the current situation for
an opposing view submits to an undue relaxation of the Bill of Rights. To this, the Court shall not
concede. Asthe branch of government tasked to guarantee that the protection of due process
is available to an individual in proper cases, the Court finds the subject shortlist as tainted with
a vice that it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009
must be deemed to have never come into operation in light of its erroneous application on the
original ground against Jardeleza’s integrity. At the risk of being repetitive, the Court upholds
the JBC’s discretion in the selection of nominees, but its application of the "unanimity rule" must
be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza. Having
been able to secure four (4) out of six (6) votes, the only conclusion left to propound is that a
majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the position
of Associate Justice and this grants him a rightful spot in the shortlist submitted to the President.
Need to Revisit JBC’s

Internal Rules

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court
is of the view that the rules leave much to be desired and should be reviewed and revised. It
appears that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be
misused or abused resulting in the deprivation of an applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the
collective will of a majority. This should be clarified. Any assertion by a member aftervoting
seems to be unfair because it effectively gives him or her a veto power over the collective votes
of the other members in view of the unanimous requirement. While an oppositor-member can
recuse himself orherself, still the probability of annulling the majority vote ofthe Council is quite
high.
Second, integrity as a ground has not been defined. While the initial impression is that it refers
to the moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the
minutes of the JBC meetings n this case reflect the lack of consensus among the members as to
its precise definition. Not having been defined or described, it is vague, nebulous and confusing.
It must be distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be
invoked only by an outsider as construed by the respondent Executive Secretary or also by a
member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type,
they must meet the minimum requirements of due process. As always, an applicant should be
given a reasonable opportunity and time to be heard on the charges against him or her, if there
are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its
function. It need not be stressed that the rules to be adopted should be fair, reasonable,
unambiguous and consistent with the minimum requirements of due process.

One final note.

The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his
appointment as a member of the Court.1âwphi1 In deference to the Constitution and his
wisdom in the exercise of his appointing power, the President remains the ultimate judge of a
candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General
Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President for
consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A.
Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant
to the observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject
to the approval of the Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this
Decision.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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",4since it was Congress through the
questioned proviso and not the President who appointed the Mayor to the subject posts;5 and,
(c) Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . .
. (g) Appointment of new employees, creation of new position, promotion, or giving
salary increases. — During the period of forty-five days before a regular election
and thirty days before a special election, (1) any head, official or appointing officer
of a government office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, who appoints or hires any
new employee, whether provisional, temporary or casual, or creates and fills any
new position, except upon prior authority of the Commission. The Commission shall
not grant the authority sought unless it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election. As an
exception to the foregoing provisions, a new employee may be appointed in case
of urgent need: Provided, however, That notice of the appointment shall be given
to the Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of salary or remuneration
or privilege to any government official or employee, including those in government-
owned or controlled corporations . . . .

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

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

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

No elective official shall be eligible for appointment or designation in any capacity

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

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

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

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

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

In any case, the view that an elective official may be appointed to another post if allowed by law
or by the primary functions of his office, ignores the clear-cut difference in the wording of the
two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any exception to the rule against
appointment or designation of an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the President as head of the economic and
planning agency;9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a
member of Congress who may be designated ex officio member of the Judicial and Bar
Council. 11

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

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

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

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

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

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

Even in the Senate deliberations, the Senators were fully aware that subject proviso may
contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have
the controversy resolved by the courts. Indeed, the Senators would not have been concerned
with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated,
Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall
be the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator
took a view that the constitutional proscription against appointment of elective officials may
have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City
instead of directing the President to appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus
nibbling in the bud the argument that they are ex officio.

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

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

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection
or designation of a person, by the person or persons having authority therefor, to fill an office
or public function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given
office."

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

The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the necessary qualifications
and eligibilities. It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an
exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental
component of the appointing power.

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

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

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

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

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

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

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

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

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

Consequently, as long as he is an incumbent, an elective official remains ineligible for

appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was,

notwithstanding his ineligibility, appointed to other government posts, he does not
automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution.
On the contrary, since an incumbent elective official is not eligible to the appointive position,
his appointment or designation thereto cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where
"(n)o Senator or Member of the House of Representatives may hold any other office or
employment in the Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that incumbent national
legislators lose their elective posts only after they have been appointed to another government
office, while other incumbent elective officials must first resign their posts before they can be
appointed, thus running the risk of losing the elective post as well as not being appointed to the
other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ".
. . . The effect is quite different where it is expressly provided by law that a person holding one
office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an
office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala.
445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262.
Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR
941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be
ineligible for election or appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office to hold the second so
that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So
2d 258, 283 Ala 445)." 27

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

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

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

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

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

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

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

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however,
That for the first year of its operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority,"
is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of
Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if
any, as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise
legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.

SO ORDERED.
 EN BANC

[G.R. No. 139382. December 6, 2000]

THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE SECRETARY RONALDO B.

ZAMORA, and ATTY. CARINA J. DEMAISIP, petitioners, vs. ATTY. JOSEFINA G.
BACAL, respondent.

DECISION
MENDOZA, J.:

This case involves the appointment and transfer of career executive service officers
(CESOs). More specifically, it concerns the appointment of respondent Josefina G. Bacal, who
holds the rank of CESO III, to the position of Chief Public Attorney in the Public Attorneys Office,
which has a CES Rank Level I, and her subsequent transfer, made without her consent, to the
Office of the Regional Director of the PAO.
In its decision[1] rendered on March 25, 1999, the Court of Appeals declared respondent
Josefina G. Bacal entitled to the position of Chief Public Attorney in the Public Attorneys
Office. Petitioners moved for a reconsideration, but their motion was denied by the appeals
court in its resolution dated July 22, 1999. Hence this petition for review on
certiorari. Petitioners contend that the transfer of respondent to the Office of the Regional
Director of the PAO is appropriate considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career Executive Service Examinations in 1989. On
July 28, 1994, she was conferred CES eligibility and appointed Regional Director of the Public
Attorneys Office. On January 5, 1995, she was appointed by then President Fidel V. Ramos to
the rank of CESO III. On November 5, 1997, she was designated by the Secretary of Justice as
Acting Chief Public Attorney. On February 5, 1998, her appointment was confirmed by President
Ramos so that, on February 20, 1998, she took her oath and assumed office.
On July 1, 1998, petitioner Carina J. Demaisip was appointed chief public defender by
President Joseph Estrada. Apparently because the position was held by respondent, another
appointment paper was issued by the President on July 6, 1998 designating petitioner Demaisip
as chief public defender (formerly chief public attorney), PUBLIC DEFENDER'S OFFICE,
DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G. BACAL, effective July 1, 1998. [2] On the other
hand, respondent was appointed Regional Director, Public Defenders Office by the President.
On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then issued a
memorandum, dated July 10, 1998, to the personnel of the Public Defenders Office announcing
the appointment of petitioner Demaisip as CHIEF PUBLIC DEFENDER. Petitioner Secretary of
Justice was notified of the appointments of petitioner Demaisip and respondent Bacal on July
15, 1998.
On July 17, 1998, respondent filed a petition for quo warranto questioning her replacement
as Chief Public Attorney. The petition, which was filed directly with this Court, was dismissed
without prejudice to its refiling in the Court of Appeals. Accordingly, respondent brought her
case in the Court of Appeals which, on March 25, 1999, ruled in her favor, finding her to be
lawfully entitled to the Office of Chief Public Attorney.
Petitioners seek the reversal of the decision of the Court of Appeals on the following grounds
I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT JOSEFINA G. BACAL, A
CAREER EXECUTIVE SERVICE OFFICER, HAS A VALID AND VESTED RIGHT TO THE
POSITION OF CHIEF PUBLIC ATTORNEY AND, AS SUCH, CANNOT BE REASSIGNED OR
TRANSFERRED TO THE POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEYS
OFFICE, DEPARTMENT OF JUSTICE.
II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT BACAL, WHO HOLDS A
CES RANK LEVEL III, WAS REASSIGNED OR TRANSFERRED TO A POSITION WHICH DOES
NOT CORRESPOND TO HER PRESENT RANK LEVEL INASMUCH AS THE POSITION OF
BUREAU REGIONAL DIRECTOR CARRIES A CES RANK LEVEL V ONLY. CONTRARY TO THE
CONCLUSIONS OF THE COURT OF APPEALS, SAID POSITION OF REGIONAL DIRECTOR,
PUBLIC ATTORNEYS OFFICE, THE POSITION TO WHICH RESPONDENT BACAL WAS
REASSIGNED OR TRANSFERRED, CARRIES A CES RANK LEVEL III WHICH CORRESPONDS
TO HER CES RANK III LEVEL. AS AN OFFICER WITH A RANK III LEVEL, RESPONDENT
BACAL IS NOT THEREFORE ELIGIBLE FOR THE POSITION OF CHIEF PUBLIC ATTORNEY
WHICH CARRIES A CES RANK LEVEL I.
III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF REGIONAL DIRECTOR,
RESPONDENT BACAL DID NOT LOSE HER CES RANK III AND HER RIGHT TO RECEIVE THE
SALARY CORRES-PONDING TO HER PRESENT RANK.
IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR RIGHT TO THE
POSITION OF CHIEF PUBLIC ATTORNEY.
V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE ADMINISTRATIVE REMEDIES
AVAILABLE TO HER BEFORE FILING THE PETITION FOR QUO WARRANTO WITH THE
COURT OF APPEALS.[3]

I. Exhaustion of Administrative Remedies

We first consider petitioners contention that respondents quo warranto suit should have
been dismissed for failure of respondent to exhaust administrative remedies by appealing to
the Office of the President.
 The contention has no merit. If, as has been held, no appeal need be taken to the Office of
the President from the decision of a department head because the latter is in theory the alter
ego of the former,[4] there is greater reason for not requiring prior resort to the Office of the
President in this case since the administrative decision sought to be reviewed is that of the
President himself. Indeed, we have granted review in other cases involving the removal of the
Administrator of the Philippine Overseas Employment Administration[5] and the Executive
Director of the Land Transportation Office[6] without requiring the petitioners to exhaust
administrative remedies considering that the administrative actions in question were those of
the President.
In any event, the doctrine of exhaustion of administrative remedies does not apply when
the question raised is purely legal.[7] In this case, the question is whether respondents transfer
to the position of Regional Director of the Public Attorneys Office, which was made without her
consent, amounts to a removal without cause. This brings us to the main issue in this appeal.

II. Merits of the Case

In holding that respondents transfer amounted to a removal without cause, the Court of
Appeals said:

. . . Her appointment as Regional Director was in effect a removal in the guise of transfer, to
repeat, without her consent. Having been validly appointed Chief Public Defender by the
President on February 8, 1998, would naturally entitle her to security of tenure since on the
basis of the appointment, she was appointed, not merely assigned, to a particular station. Her
involuntary transfer, through appointment, to that of a mere Regional Director, did not either
conform to the rules on the constitutional protection of security of tenure. Above all, her
supposed appointment as a Regional Director is not only temporary but is on the other hand
permanent wherein she lost her position as Chief Public Attorney, or her connection with the
previous position being severed.

....

In the case of the petitioner, there is certainly a diminution in duties and responsibilities when
she was downgraded through the July 6, 1998 appointment, involuntarily made, from that of
Chief Public Attorney to a mere Regional Director. To repeat, the rank equivalent to a Bureau
Director is Rank III while that of a mere Bureau Regional Director is Rank V. Diminution in duties
and responsibilities, certainly becomes apparent and then in the matter of salary, the basic
salary of a Chief Public Attorney together with all the perks, would amount to P575,199.00. In
the case of a Regional Director, his basic salary together with all the perks, would only amount
to P341,479.96. Admittedly, when a CESO is assigned or made to occupy a position with a lower
salary grade, he shall supposedly continue to be paid his salary that attaches to his CES rank. It
cannot, on the other hand, be denied that the moment a non-CESO is appointed to a CES
position, he shall receive, at the same time, the salary of his CES position. There is merit in the
petitioners argument that allowing the Regional Director to receive continuously the salary rate
of Chief Public Attorney in effect would amount to an illegal consequence since the
disbursement of public funds, as budgeted, provides funding for only one Chief Public
Attorney. The dilemma arises when both the petitioner and respondent Demaisip would be
claiming the salary of a Chief Public Attorney. There is no pretension either in the Brief of the
public respondents that there has been a supplemental budget for the petitioner, now
downgraded to a mere Regional Director, to be receiving continuously the salary scale of a Chief
Public Attorney.

....

Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the recruitment, selection
and appointment process of the Career Executive Service. As a matter of fact, as a rule (1997
Revised Edition, Handbook, Career Executive Service), the appointment to most positions in the
CES is supposed to be made by the President only from the list of CES eligibles, but
recommended by the CES Board. Admittedly, an incumbent of a CES position may qualify for
appointment to a CES rank, only upon the confirming of a CES Eligibility and compliance with
the other requirements being prescribed by the Board (Ibid. p. 5). Precisely, the CES was created
pursuant to PD No. 1 (adopting the Integrated Reorganizational Plan, dated September 24,
1972), if only to form a continuing pool of well-selected and development-oriented career
administrators who shall provide competent and faithful service (Ibid. p. 2). We cannot see this
from that of the petitioner then being replaced by a non-CESO.[8]

The appealed decision will not bear analysis.

First. What should be emphasized in this case is that respondent Josefina G. Bacal is a CESO
III and that the position of Regional Director of the PAO, to which she was transferred,
corresponds to her CES Rank Level III and Salary Grade 28. This was her position before her
appointment on February 5, 1998 to the position of Chief Public Attorney of the PAO, which
requires a CES Rank Level I for appointment thereto. Respondent Bacal therefore has no ground
to complain. She may have been considered for promotion to Rank I to make her appointment
as Chief Public Attorney permanent. The fact, however, is that this did not materialize as
petitioner Carina J. Demaisip was appointed in her place. If respondent was paid a salary
equivalent to Salary Grade 30 while she was holding that office, it was only because, under the
law, if a CESO is assigned to a position with a higher salary grade than that corresponding to
his/her rank, he/she will be allowed the salary of the CES position.
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:[9]

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. . . .

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

It is contended, however, that respondent is qualified for the position of Chief Public
Attorney because this position has a CES Rank Level III, while that of Regional Director, Public
Attorneys Office, has a CES Rank Level V. This is not so. The position of Chief Public Attorney has
a CES Rank Level I and a Salary Grade 30, while that of Regional Director of the PAO has a CES
Rank Level III and a Salary Grade 28. This is shown by the following:[10]
1. Certification, dated April 6, 1999, issued by the Secretary of the Department of Budget
and Management (DBM), which states that the position of the head of Public
Attorneys Office (PAO) is classified as Chief Public Attorney at Salary Grade 30 (Annex
A of Annex M, Petition).
2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive Director
of the CES Board, which states that the Rank equivalent to the position of Chief Public
Attorney and Regional Public Attorney are CESO Rank I and CESO Rank III respectively
(Annex B of Annex M, Petition); and
3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then
Executive Director Juridico of the CES Board, stating that the position of Chief Public
Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M, Petition). The
certification reads:

This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public Attorneys Office
was conferred CES Eligibility on July 28, 1994 per Board Resolution No. 94-4620 and was
appointed Career Executive Service Officer (CESO) Rank III by then President Fidel V. Ramos on
January 5, 1995. She is yet to fulfill the requirements for an adjustment of her CES rank (from
CES Rank III to Rank I) to a level equivalent to her present position.

This certification is issued upon the request of Atty. Bacal for whatever purpose it may serve
best.

Second. The Court of Appeals held that respondent Bacal had acquired security of tenure as
Chief Public Attorney by the mere fact of her appointment to that position. This is likewise the
point of the dissent of Justice Gonzaga-Reyes who contends that a CES eligibility is all that a
person needs in order to acquire security of tenure in any position embraced in the Career
Executive service; that a CESO rank is only necessary to differentiate a CESOs general managerial
duties/responsibilities, personal qualifications, and demonstrated competence; and that no
other CES examination is required for appointment to a higher rank.
Appointments, assignments, reassignments, and transfers in the Career Executive Service
are based on rank. On this point, the Integrated Reorganization Plan cannot be any clearer. It
provides:[11]
c. Appointment. Appointment to appropriate classes in the Career Executive Service
shall be made by the President from a list of career executive eligibles recommended
by the Board. Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments as
undersecretary and heads of bureaus and offices and equivalent positions shall be
with the confirmation of the Commission on Appointments. The President may,
however, in exceptional cases, appoint any person who is not a Career Executive
Service eligible; provided that such appointee shall subsequently take the required
Career Executive Service examination and that he shall not be promoted to a higher
class until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent
appointment to a position embraced in the Career Executive Service shall continue to
hold his position, but may not advance to a higher class of position in the Career
Executive Service unless or until he qualifies for membership in the Career Executive
Service.
....
e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of
the Service shall be assigned to occupy positions of Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank
as may be identified by the Board on the basis of the members functional expertise. .
..
The rules and regulations promulgated by the CES Board[12] to implement the Integrated
Reorganization Plan are equally clear in providing that

Career Executive Service Eligibility

Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the
inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the
Board through a formal Board Resolution after an evaluation of the examinees performance in
the four stages of the CES eligibility examinations.
....

Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the other requirements prescribed by
the Board, an incumbent of a CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President upon the recommendation of the
Board. This process completes the officials membership in the CES and most importantly,
confers on him security of tenure in the CES.

There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career Executive
Service Officer I (CESO I), while the lowest is that of CESO VI.

The appropriate CESO rank to which a CES eligible may be appointed depends on two major
qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance.

Performance is determined by the officials performance rating obtained in the annual

CESPES. On the other hand, managerial responsibility is based on the level of the general duties
and responsibilities which an eligible is performing, as follows:

Levels of Duties and Rank Equivalent

Responsibilities
if level of managerial responsibilities I
are comparable to that of an Under-
secretary
if comparable to that of an Assistant II
Secretary
if comparable to that of a Bureau III
Director or a Department Regional
Director
if comparable to that of an Assistant IV
Bureau Director, Department
Assistant Regional Director or
Department Service Chief
if comparable to that of a Bureau V
Regional Director
if comparable to that of a Bureau VI
Assistant Regional Director

As a general rule, a CES eligible will be recommended for appointment to the rank equivalent of
the level of his managerial responsibility if his performance rating is Satisfactoryor higher. If the
performance rating is Outstanding, he will be recommended one rank higher than his level of
managerial responsibility.

Security of tenure in the career executive service is thus acquired with respect to rank and
not to position. The guarantee of security of tenure to members of the CES does not extend to
the particular positions to which they may be appointed a concept which is applicable only to
first and second-level employees in the civil service but to the rank to which they are appointed
by the President. Accordingly, respondent did not acquire security of tenure by the mere fact
that she was appointed to the higher position of Chief Public Attorney since she was not
subsequently appointed to the rank of CESO I based on her performance in that position as
required by the rules of the CES Board.
Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES eligibility was
all that was required to make her appointment to the position of Chief Public Attorney
permanent would give rise to an anomalous situation. Following such theory, even if respondent
is not appointed CESO I because her performance as Chief Public Attorney does not warrant her
appointment to such higher rank, she cannot be transferred to any other office to which her
rank (CESO III) qualifies her. This theory of the dissent, i.e., that a CES eligibility gives the
appointee security of tenure - not the ruling in this case that it is appointment to the appropriate
rank that confers security of tenure - is what will undermine the Career Executive Service.
Third. Within the Career Executive Service, personnel can be shifted from one office or
position to another without violation of their right to security of tenure because their status and
salaries are based on their ranks and not on their jobs. To understand this, it is necessary to
consider the reason for the creation of the Career Executive Service.
R.A. No. 5435,[13] as amended by R.A. Nos. 6076, 6172, and 6175, created a commission
charged with the specific function of reorganizing the government to promote simplicity,
economy, and efficiency in its operations. The result was the preparation of the Integrated
Reorganization Plan which was adopted and declared part of the law of the land by P.D. No. 1
on September 24, 1972. A major feature of the Integrated Reorganization Plan was the creation
of the Career Executive Service whose justification was explained by the Commission on
Reorganization, thus:

The present Civil Service system is not geared to meet the executive manpower needs of the
government. The filling of higher administrative positions is often based on considerations other
than merit and demonstrated competence. The area of promotion is currently confined to the
person or persons next-in-rank in the agency. Moreover, personnel classification and
compensation are uniformly based on concepts and procedures which are suited to positions in
the lower levels but not to managerial posts in the higher levels. To fill this crucial gap, it is
recommended that a Career Executive Service be established. This group of senior
administrators shall be carefully selected on the basis of high qualifications and
competence. Skilled in both techniques and processes of management, these career executives
will act as catalysts for administrative efficiency and as agents of administrative innovation.
The status and salary of the career executives will be based on their rank, and not on the job
that they occupy at any given time . . . . In this sense, the rank status of the Career Executive
Service is similar to that of the commissioned officers in the Armed Forces or members of the
Foreign Service. Unlike these latter organizations, however, entrance to the Career Executive
Service will not be generally at an early age in a relatively junior level but at a senior
management level.

....

The rank classification in the Service will allow for mobility or flexibility of assignments such that
the government could utilize the services or special talents of these career executives wherever
they are most needed or will likely create the greatest impact. This feature is especially relevant
in a developing country which cannot afford to have its scarce executive manpower pegged to
particular positions.

Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies
of public service, is thus the distinguishing feature of the Career Executive Service. To attain this
objective, the Integrated Reorganization Plan provides:[14]

e. Assignments, Reassignments and Transferees. . . .

Any provision of law to the contrary notwithstanding, members of the Career Executive
Service may be reassigned or transferred from one position to another and from one
department, bureau or office to another; provided that such reassignment or transfer is
made in the interest of public service and involves no reduction in rank or
salary; provided, further, that no member shall be reassigned or transferred oftener
than every two years; and provided, furthermore, that if the officer concerned believes
that his reassignment or transfer is not justified, he may appeal his case to the President.

The implementing rules and regulations of the CES Board provide:

Salary of Career Executive Service Officers. A CESO is compensated according to his CES rank and
not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES position
with a higher salary grade than that of his CES rank, he is allowed to receive the salary of the
CES position.

Should he be assigned or made to occupy a CES position with a lower salary grade, he shall
continue to be paid the salary attached to his CES rank.[15]

Petitioners are, therefore, right in arguing that respondent, as a CESO, can be reassigned
from one CES position to another and from one department, bureau or office to
another. Further, respondent, as a CESO, can even be assigned or made to occupy a CES position
with a lower salary grade. In the instant case, respondent, who holds a CES Rank III, was correctly
and properly appointed by the appointing authority to the position of Regional Director, a
position which has a corresponding CES Rank Level III.[16]
Indeed, even in the other branches of the civil service, the rule is that, unless an employee
is appointed to a particular office or station, he can claim no security of tenure in respect of any
office. This rule has been applied to such appointments as Director III or Director IV or Attorney
IV or V in the Civil Service Commission since the appointments are not to specified offices but
to particular ranks;[17] Election Registrars;[18] Election Officers, also in the Commission on
Elections;[19] and Revenue District Officers in the Bureau of Internal Revenue.[20] Reiterating the
principle in Sta. Maria v. Lopez,[21] this Court said:

. . . [T]he rule that outlaws unconsented transfers as anathema to security of tenure applies only
to an officer who is appointed - not merely assigned - to a particular station.Such a rule does
not proscribe a transfer carried out under a specific statute that empowers the head of an
agency to periodically reassign the employees and officers in order to improve the service of the
agency. The use of approved techniques or methods in personnel management to harness the
abilities of employees to promote optimum public service cannot be objected to. . . .

For the foregoing reasons, we hold that respondents appointment to the position of Chief
Public Attorney was merely temporary and that, consequently, her subsequent transfer to the
position of Regional Director of the same office, which corresponds to her CESO rank, cannot be
considered a demotion, much less a violation of the security of tenure guarantee of the
Constitution.
Fourth. On the other hand, Justice Puno makes much of the fact that petitioner Carina J.
Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional cases the
appointment of non-CES eligibles provided that the appointees subsequently pass the CES
Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated Reorganization Plan
provides that the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the required
Career Executive Service examination and that he shall not be promoted to a higher class until
he qualified in such examination.
For the same reason that the temporary appointment of respondent Josefina G. Bacal as
Chief Public Attorney is valid under this provision of the law despite the fact that she does not
hold the rank of CESO I, so is the appointment to the same position of petitioner Carina J.
Demaisip. The question in this case is not the validity of the appointment to such position but
whether the appointee acquires security of tenure even if he does not possess the requisite
rank. There is no claim that petitioner Demaisip has a right to remain in the position of Chief
Public Attorney permanently.
On the other hand, as respondent herself does not have the requisite qualification for the
position of Chief Public Attorney, she cannot raise the lack of qualification of petitioner. As held
in Carillo v. Court of Appeals,[22] in a quo warranto proceeding the person suing must show that
he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack
of qualification or eligibility of the supposed usurper is immaterial.[23] Indeed, this has been the
exacting rule[24] since it was first announced, 95 years ago, in Acosta v. Flor.[25] As at present
embodied in Rule 66, 5 of the Rules of Civil Procedure, the rule is that a person claiming to be
entitled to a public office or position usurped or unlawfully held or exercised by another may
bring an action therefor in his own name.
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition for quo
warranto filed by respondent is DISMISSED.
SO ORDERED.
 FIRST DIVISION

G.R. No. 146875 July 14, 2003

KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA, JORGE BANAL,

Chairman of the Special Investigation Committee on Administrative Cases Against Elected
Barangay Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City Mayor of
Quezon City, petitioners,
vs.
BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.

YNARES-SANTIAGO, J.:

Is the taking of an oath of office anew by a duly proclaimed but subsequently unseated local
elective official a condition sine qua non to the validity of his re-assumption in office where the
Commission on Elections (COMELEC) orders the relinquishment of the contested position?

This is the legal question raised in this petition under Rule 45 of the 1997 Rules of Civil
Procedure, assailing the November 13, 2000 Summary Judgment1 of the Regional Trial Court of
Quezon City, Branch 77, which set aside the decision of the City Council of Quezon City finding
respondent Barangay Captain Manuel D. Laxina guilty of grave misconduct.

On May 27, 1997, respondent took his oath and thereafter assumed office as the duly
proclaimed and elected barangay captain of Barangay Batasan Hills, Quezon City, in the 1997
Barangay Elections. Meanwhile, Roque Fermo, his rival candidate, filed an election protest with
the Metropolitan Trial Court of Quezon City, Branch 40. On January 18, 1999, Fermo was
declared as the winner in the Barangay Elections. Respondent filed a notice of appeal with the
COMELEC while Fermo filed a motion for execution pending appeal.

On January 20, 1999, an order was issued by the trial court granting the motion for execution
pending appeal. Hence, respondent vacated the position and relinquished the same to Fermo.
Thereafter, respondent filed a petition with the COMELEC questioning the January 20, 1999
order of the trial court. On September 16, 1999, the COMELEC issued a resolution2 annulling the
order which granted the execution of the decision pending appeal on the ground that there
existed no good reasons to justify execution. The dispositive portion thereof reads:

WHEREFORE, in view of all the foregoing, the Commission En Banc GRANTS the petition.
Accordingly, the January 20, 1999 Order of the Court a quo is hereby ANNULLED. Private
respondent ROQUE FERMO is hereby ORDERED to CEASE and DESIST from further
performing the functions of Punong Barangay of Barangay Batasan Hills, District II,
Quezon City and to relinquish the same to Petitioner MANUEL LAXINA, SR., pending final
resolution of appeal.
 SO ORDERED.3

On October 27, 1999, the COMELEC issued a writ of execution directing Fermo to vacate the
office of Barangay Chairman of Barangay Batasan Hills. On October 28, 1999, Fermo was served
a copy of the writ of execution but refused to acknowledge receipt thereof. He also refused to
vacate the premises of the barangay hall of Batasan Hills.4 This did not, however, prevent
respondent and his staff from discharging their functions and from holding office at the SK-Hall
of Batasan Hills.5 On the same date, respondent appointed Godofredo L. Ramos as Barangay
Secretary6 and on November 8, 1999, he appointed Rodel G. Liquido as Barangay Treasurer.7

On November 12, 1999, the COMELEC, acting on respondent's motion to cite Fermo for
contempt,8 issued an alias writ of execution,9 which was likewise returned unsatisfied. Finally,
on November 16, 1999, respondent took his oath of office as Barangay Captain of Batasan Hills,
Quezon City before Mayor Ismael Mathay, Jr.10 The following day, November 17, 1999, Roque
Fermo turned over to respondent all the assets and properties of the barangay.11

On November 20, 1999, the Barangay Council of Batasan Hills issued Resolution No. 001-S-1999
ratifying the appointment of Godofredo L. Ramos as Barangay Secretary, effective November 1,
199912 and Resolution No. 002-S-1999 ratifying the appointment of Rodel G. Liquido, as
Barangay Treasurer, also effective November 1, 1999.13However, the appointees of Roque
Fermo to the same position registered objections to the said Resolutions. In order to
accommodate these appointees, respondent agreed to grant them allowances and
renumerations for the period of November 1–7, 1999.14

In Resolution No. 017-S-99 dated December 11, 1999, the barangay council of Batasan Hills,
authorized the appropriation of P864,326.00 for the November to December 1999 salary of its
barangay officials and employees.15Pursuant thereto, the barangay payroll was issued on
December 18, 1999, enumerating the names of respondent and his appointed barangay
secretary and barangay treasurer as among those entitled to compensation for services
rendered for the period November 8, 1999 to December 31, 1999.16 Petitioners Jose G.
Mendoza, Jr., Rosario E. Espino and Teresita S. Mendoza, who were barangay councilors, refused
to sign Resolution No. 017-S-99 as well as said payroll.17

Sometime in January 2000, petitioner barangay councilors filed with the Quezon City Council a
complaint18 for violation of the anti-graft and corrupt practices act and falsification of legislative
documents against respondent and all other barangay officials who signed the questioned
resolution and payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay Treasurer
Rodel G. Liquido, Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T.
Castañeda, Elias G. Gamboa, and SK-Chairman Sharone Amog. They contended that defendants
made it appear in the payroll that he and his appointees rendered services starting November
8, 1999 when, in truth, they commenced to serve only on November 17, 1999 after respondent
took his oath and assumed the office of barangay chairman. They further claimed that the
effectivity date of the barangay secretary and barangay treasurer's appointment, as approved
in Resolution No. 001-S-1999, was November 16, 1999, but respondent fraudulently antedated
it to November 1, 1999. Petitioners also contended that respondent connived with the other
barangay officials in crossing out their names in the payroll.

In their joint counter-affidavit,19 defendants claimed that the taking anew of the oath of office
as barangay chairman was a mere formality and was not a requirement before respondent can
validly discharge the duties of his office. They contended that respondent's appointees are
entitled to the remuneration for the period stated in the payroll as they commenced to serve as
early as October 28, 1999. They added that the names of the 3 petitioner barangay councilors
who refused to sign the assailed resolution and daily wage payroll were crossed out from the
said payroll to prevent any further delay in the release of the salaries of all barangay officials
and employees listed therein.20

On October 2, 2000, the Special Investigation Committee on Administrative Cases of the City
ruled that respondent had no power to make appointments prior to his oath taking on
November 16, 1999.21 The Committee, however, found that respondent and the other barangay
officials who signed the questioned resolution and payroll acted in good faith when they
erroneously approved the grant of renumerations to respondent's appointees starting
November 8, 1999. Nevertheless, it found respondent guilty of grave misconduct and
recommended the penalty of 2 months suspension. The charges against Barangay Secretary
Godofredo Ramos and Barangay Treasurer Rodel Liquido were dismissed, inasmuch as the City
Council's disciplinary jurisdiction is limited to elective barangay officials only. As to Barangay
Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castañeda, Elias G. Gamboa,
and SK-Chairman Sharone Amog, the charges against them were likewise dismissed on the
ground that there was no "separate and independent proof that . . . [they] conspired with
Punong Barangay Laxina . . . Ramos and Liquido in committing the acts therein complained of."22

On October 3, 2000, the Quezon City Council adopted the findings and recommendations of the
Committee.23Respondent filed a motion for reconsideration.24 On October 9, 2000, however,
the City Council implemented the decision and appointed Charlie Mangune as acting barangay
chairman of Batasan Hills, Quezon City.25

Respondent filed a petition for certiorari26 with the Regional Trial of Quezon City, Branch 67,
seeking to annul the decision of the Quezon City Council. In their answer, petitioners prayed for
the dismissal of the petition, arguing that respondent failed to exhaust administrative remedies
and the trial court has no jurisdiction over the case because appeals from the decision of the
City Council should be brought to the Office of the President.

On November 13, 2000, a summary judgment was rendered by the trial court in favor of
respondent. It did not rule on the propriety of the re-taking of the oath office by the latter, but
nevertheless, exonerated him on the basis of the finding of the City Council that he did not act
in bad faith but merely "misread the law, as applied to the facts." The dispositive portion of the
said decision, states:
 WHEREFORE, the decision finding herein petitioner guilty of grave misconduct and
imposing upon him the penalty of suspension and loss of concomitant benefits for two
(2) months is hereby annulled and set aside. The suspension of the petitioner is hereby
lifted and all benefits due to him are ordered restored.

The motion for a preliminary hearing on the affirmative defense of respondents and the
motion to drop City Councilor Banal as party respondent are both denied.

SO ORDERED.27

Petitioners filed the instant petition for review raising pure questions of law.

Before going into the substantive issues, we shall first resolve the issue on exhaustion of
administrative remedies.

The trial court ruled that Section 67 of the Local Government Code, which allows an appeal to
the Office of the President, is not applicable because the decision of the City Council is final and
executory. It added that respondent correctly filed a petition for certiorari because he had no
other plain, speedy and adequate remedy. The trial court further ratiocinated that an appeal to
the Office of the President before going to the regular courts might render the case moot and
academic inasmuch as the penalty of suspension might have been fully served by the time the
court renders a decision.

Sections 61 and 67 of the Local Government Code, provide:

Section 61. Form and Filing of Administrative Complaints. — A verified complaint against
any erring local elective official shall be prepared as follows:

xxx xxx xxx

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and executory.
(emphasis supplied)

Sec. 67. Administrative Appeals. — Decisions in administrative cases may, within thirty
(30) days from receipt thereof, be appealed to the following:

xxx xxx xxx

(b) The Office of the President, in the case of decisions of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and
independent component cities.

Decision of the Office of the President shall be final and executory.

In interpreting the foregoing provisions, the trial court did not consider Section 68 of the same
code which provides:

An appeal shall not prevent a decision from being final and executory. The respondent
shall be considered as having been placed under preventive suspension during the
pendency of an appeal in the event that he wins such appeal. In the event the appeal
results in an exoneration, he shall be paid his salary and such other emoluments during
the pendency of the appeal.

Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it
specifically allows a party to appeal to the Office of the President. The phrases "final and
executory," and "final or executory" in Sections 67 and 68, respectively, of the Local Government
Code, are not, as erroneously ruled by the trial court, indicative of the appropriate mode of relief
from the decision of the Sanggunian concerned. These phrases simply mean that the
administrative appeals will not prevent the enforcement of the decisions.28 The decision is
immediately executory but the respondent may nevertheless appeal the adverse decision to the
Office of the President or to the Sangguniang Panlalawigan, as the case may be.29

It is clear that respondent failed to exhaust all the administrative remedies available to him. The
rule is that, before a party is allowed to seek the intervention of the court, it is a pre-condition
that he should have availed of all the means of administrative processes afforded him. Hence, if
a remedy within the administrative machinery can still be availed of by giving the administrative
officer concerned every opportunity to decide on a matter that comes within his jurisdiction,
then such remedy should be exhausted first before the court's judicial power can be sought. The
premature invocation of the court's intervention is fatal to one's cause of action.30

The application of the doctrine of exhaustion of administrative remedies, however, admits of

exceptions, one of which is when the issue involved is purely legal.31 In the case at bar, the issues
of whether or not the decision of the Sangguniang Panlungsod in disciplinary cases is
appealable to the Office of the President, as well as the propriety of taking an oath of office
anew by respondent, are certainly questions of law which call for judicial
intervention.32Furthermore, an appeal to the Office of the President would not necessarily
render the case moot and academic. Under Section 68, in the event the appeal results in his
exoneration, the respondent shall be paid his salary and such other emoluments during the
pendency of the appeal. Hence, the execution of the penalty or expiration of term of the public
official will not prevent recovery of all salaries and emoluments due him in case he is exonerated
of the charges. Clearly, therefore, the trial court correctly took cognizance of the case at bar,
albeit for the wrong reasons.

We now come to the substantive issues.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the
full investiture with the office. It is only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete.33 However, once
proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise
the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him
from assuming office or from discharging his functions.34 Unless his election is annulled by a final
and executory decision,35 or a valid execution of an order unseating him pending appeal is
issued, he has the lawful right to assume and perform the duties of the office to which he has
been elected.

In the case at bar, respondent was proclaimed as the winner in the 1997 Barangay Elections in
Batasan Hills, Quezon City; he took his oath on May 27, 1997 and thereafter assumed office. He
is therefore vested with all the rights to discharge the functions of his office. Although in the
interim, he was unseated by virtue of a decision in an election protest decided against him, the
execution of said decision was annulled by the COMELEC in its September 16, 1999 Resolution
which, incidentally, was sustained by this Court on March 13, 2000, in Fermo v. Commission on
Elections.36 It was held therein that "[w]hen the COMELEC nullified the writ of execution pending
appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the winner of the
election was stayed and the 'status quo' or the last actual peaceful uncontested situation
preceding the controversy was restored . . ."37The status quo referred to the stage when
respondent was occupying the office of Barangay Captain and discharging its functions. For
purposes of determining the continuity and effectivity of the rights arising from respondent's
proclamation and oath taken on May 27, 1997, it is as if the said writ of execution pending
appeal was not issued and he was not ousted from office. The re-taking of his oath of office on
November 16, 1999 was a mere formality considering that his oath taken on May 27, 1997
operated as a full investiture on him of the rights of the office. Hence, the taking anew of his
oath of office as Barangay Captain of Batasan Hills, Quezon City was not a condition sine qua
non to the validity of his re-assumption in office and to the exercise of the functions thereof.

Having thus ruled out the necessity of respondent's taking anew of the oath of office, the next
question to be resolved is: when is respondent considered to have validly re-assumed office —
from October 28, 1999, the date of service of the writ of execution to Roque Fermo and the date
respondent actually commenced to discharge the functions of the office, or from November 17,
1999, the date Roque Fermo turned over to respondent the assets and properties of Barangay
Batasan Hills, Quezon City?

The records show that the COMELEC served on October 28, 1999 a writ of execution ordering
Fermo to desist from performing the function of the Office of Barangay Captain, but the latter
refused to comply therewith. His supporters prevented respondent from occupying the
barangay hall, prompting the latter to move for the issuance of an alias wit of execution, which
was granted on November 12, 1999. It was only on November 17, 1999 that the turn-over to
respondent of the assets and properties of the barangay was effected. Undoubtedly, it was
Fermo's defiance of the writ that prevented respondent from assuming office at the barangay
hall. To reckon, therefore, the effectivity of respondent's assumption in office on November 17,
1999, as petitioners insist, would be to sanction dilatory maneuvers and to put a premium on
disobedience of lawful orders which this Court will not countenance. It is essential to the
effective administration of justice that the processes of the courts and quasi-judicial bodies be
obeyed.38 Moreover, it is worthy to note that although the physical possession of the Office of
the Barangay Captain was not immediately relinquished by Fermo to respondent, the latter
exercised the powers and functions thereof at the SK-Hall of Batasan Hills, Quezon City starting
October 28, 1999. His re-assumption in office effectively enforced the decision of the COMELEC
which reinstated him in office. It follows that all lawful acts of the latter arising from his re-
assumption in office on October 28, 1999 are valid. Hence, no grave misconduct was committed
by him in appointing Godofredo L. Ramos and Rodel G. Liquido as Barangay Secretary and
Barangay Treasurer, respectively, and in granting them emoluments and renumerations for the
period served.

Respondent was also charged of conniving with the other barangay officials in crossing out the
names of the petitioner barangay councilors in the payroll. The petition alleged that as a
consequence of the striking out of the names of the petitioner barangay officials, they were not
able to receive their salaries for the period November 8 to December 31, 1999. 39 A reading of
the payroll reveals that the names of said petitioners and their corresponding salaries are
written thereon. However, they refused to sign the payroll and to acknowledge receipt of their
salaries to manifest their protest. Quod quis ex culpa sua damnum sentire. Indeed, he who
suffered injury through his own fault is not considered to have suffered any damage.40 Hence,
the investigative committee correctly brushed aside this charge against respondent.

The trial court therefore did not err in exonerating respondent and pursuant to Article 68 of the
Local Government Code, he should be paid his salaries and emoluments for the period during
which he was suspended without pay.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The Summary
Judgment of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-00-42155,
exonerating respondent Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering
the payment of all benefits due him during the period of his suspension, is AFFIRMED.

SO ORDERED.