[De Jure and De Facto Officers] respondents appointment based on (1) CSC MC No. 5, s. 1988, Par.

respondents appointment based on (1) CSC MC No. 5, s. 1988, Par. 3;[7] (2) CSC MC NO. 10, s.
1986, Par. A, 1.2 and Par. B;[8] and (3) Civil Service Eligibility. These grounds were not
[G.R. No. 129616. April 17, 2002] explained or discussed in the Resolution, the dispositive portion of which reads:

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as
vs. JULIETA MONSERATE, respondent. Resources Management Division Manager of the Port Management Office of Iloilo.

DECISION On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9]
(entitled Creation of the PPA Managers Pool), dated September 28, 1988, issued by the new
SANDOVAL-GUTIERREZ, J.: PPA General Manager, Mr. Rogelio A. Dayan. That Special Order excluded the name of
respondent from the pool-list and placed instead the name of petitioner as Manager II,
This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of Resource Management Division. In effect, the Special Order implemented the August 11, 1988
the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the Resolution No. Resolution of the PPA Appeals Board.
952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil
Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Aggrieved, respondent filed with the PPA General Manager an appeal/request for
Manager II of the Resources Management Division, Ports Management Office, Philippine Ports clarification dated November 2, 1988.[10] She questioned her replacement under PPA Special
Authority (PPA), Iloilo City. Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular
because (1) she was not notified of the hearing before it; (2) she was not furnished a copy of
The facts are: the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner
Anino;[11] (3) she was not informed of the reasons behind her replacement; and (4) their Port
Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Manager (in Iloilo City), who was then an official member of the Board, was not included in
Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position the said proceedings.
of Cashier II and then as Finance Officer (SG-16) in 1980.[3]
On November 8, 1988, pending resolution of her appeal/request for clarification, respondent
In the early part of 1988, when the PPA underwent a reorganization, respondent applied for received a copy of PPA Special Order No. 492-88[12] dated October 21, 1988, also issued by
the permanent position of Manager II (SG-19) of the Resource Management Division, same General Manager Dayan. This PPA Order officially reassigned her to the position of
office. The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than
shows the ranking of the six (6) aspirants to the said position, thus: her previous position as Finance Officer (SG 16) before she was appointed as Division
Manager.
COMPARATIVE DATA SHEET
OFFICE: PMO ILOILO Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager
DIVISION: RES. MANAGEMENT DIVISION Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988
POSITION: DIVISION MANAGER a precautionary appeal[13] with the CSC. She manifested that as of said date (November
REQUIRED CS ELIG.: CS PROF / RA 1080 25), she has not yet been furnished a certified copy of the PPA Appeals Board Resolution.
CANDIDATES ELIGIBILITY xxx TOTAL
1. MONSERATE, JULIETA CS Prof. xxx 79.5 On January 2, 1989, respondent received a copy of her new appointment as Administrative
2. ANINO, RAMON 1st grade xxx 70 Officer dated October 1, 1988.[14] It was also during this time when she learned that PPA
3. TEODOSIO, APRIL PD 907 (CPA) xxx 67 General Manager Dayan had just issued petitioners appointment dated October 21, 1988 as
4. MORTOLA, DARIO CS Prof. xxx 67 Manager II in the Resource Management Division effective February 1, 1988.
5. ESPINOSA, AMALIK Bar xxx 63.5
6. PERFECTO, BASCOS RA 1080 xxx 59.5 On January 16, 1989, respondent filed with the CSC an appeal formally protesting against
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed[5] petitioner Aninos appointment and at the same time questioning the propriety of the August
respondent to the position of Manager II (Resource Management Division). On even date, 11, 1988 Resolution of the PPA Appeals Board. This appeal remained pending with the CSC for
respondent assumed office and discharged the functions thereof. On July 8, 1988, the CSC, more than six (6) years despite respondent's requests for early resolution. In the meantime, she
through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved assumed the position of Administrative Officer.
her appointment.
Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995, dismissed
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per respondents appeal, thus:
the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals
Board, protesting against respondents appointment. The PPA Appeals Board, in a It is well-established rule that an appointment, although approved by this Commission, does
Resolution[6] dated August 11, 1988, sustained the protest and rendered ineffective not become final until the protest filed against it is decided by the agency or by the
Commission. Although Monserate had already assumed the position of RMD Manager II, the
appointing authority may still withdraw the same if a protest is seasonably filed. This is covered
by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x.
Monserates claim that she is more qualified than Anino is not relevant to the issue before this
Commission. In cases of protest filed or appealed to the Commission, the main question to be
resolved is whether or not the appointee meets the qualification standard. x x x. The
Commission will not disturb the choice of the appointing authority as long as the appointee
meets the qualification prescribed for the position in question.
Respondent filed a motion for reconsideration but the same was denied by the CSC in its
Resolution No. 95-6640 dated October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review impleading as
respondents the PPA General Manager and petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions
of the CSC. It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not
supported by evidence and that the same was irregularly issued due to lack of proper notice
to respondent with respect to the Boards proceedings. It concluded that her reassignment
from the position of Manager II, Resource Management Division (SG-19), to the position of
Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of
tenure and due process. The dispositive portion of the Court of Appeals' Decision reads:
THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void
Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988
(should be October 24, 1995), of the Civil service Commission; and directing the reinstatement
of the petitioner to the position of Resource Management Division Manager II.
SO ORDERED.
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present
petition. On November 30, 1997, petitioner Anino retired from the government service.[17]
Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT
MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO
ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.
II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-
NIGH RULE THAT RESPONDENT MONSERATES APPOINTMENT AS RESOURCE MANAGEMENT
DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE
PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE
CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING
THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE
RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.[18]
The pivotal issue in this case is whether or not there was due process when respondent was
replaced by petitioner Anino from her position as Manager II, Resource Management Division,
and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since demotion, being in
the nature of administrative penalty, presupposes a conviction in an administrative case.
Here, respondent was not charged of any administrative case. Rather, she was displaced
from her position as an aftermath of the PPA reorganization, authorized by law, the
implementation of which having been carried out with utmost good faith.
Furthermore, the said displacement was just the necessary effect of the August 11, 1988
Resolution of the PPA Appeals Board which sustained petitioner Aninos timely protest against
respondents appointment. Petitioners theorize that the appointment of respondent as
Resource Management Division Manager did not become final until the protest filed against
her was favorably decided in her favor by the CSC. In support of this contention, they cited
Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), which provides inter alia:
SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if
the appointee assumes the duties of the position and the appointee is entitled to receive the
salary attached to the position. However, the appointment, together with the decision of the
department head, shall be submitted to the Commission for appropriate action within 30 days
from the date of its issuance, otherwise the appointment becomes ineffective thereafter.
Likewise, such appointment shall become ineffective in case the protest is finally resolved
against the protestee, in which case, he shall be reverted to his former position.
Petitioners also contend that the head of an agency, being the appointing authority, is the
one most knowledgeable to decide who can best perform the functions of the office. The
appointing authority has a wide latitude of choice subject only to the condition that the
appointee should possess the qualifications required by law. Consequently, the CSC acted
rightly when it did not interfere in the exercise of discretion by the PPA appointing authority,
there being no evidence of grave abuse of discretion thereof or violation of the Civil Service
Law and Rules.
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with respondents demotion
from the contested position of Manager II, Resource Management Office (SG-19), to the
lower position of Administrative Officer (SG-15). Antithetically, it was precisely because of the
said reorganization that respondent applied to the higher position of Division Manager II. In
fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself
shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six
(6) contenders to the said post. Respondent was eventually issued a permanent appointment
as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr.,
during which time she actually assumed office and discharged its functions. This appointment
was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of
the Civil Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988
Resolution of the PPA Appeals Board when respondent was demoted to the lower position of
Administrative Officer. This is further shown by the following orders and appointments
subsequently issued by then PPA General Manager Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded
respondent Monserate from the PPA Managers pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position of
Administrative Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned
respondent to the position of Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of
Manager II, Resource Management Division, effective February 1, 1988.
Therefore, contrary to petitioners claim, respondent was demoted, not by reason of the PPA
reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988
sustaining petitioner Aninos protest against respondents appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988
Resolution of the PPA Appeals Board which upholds the appointment of Ramon A. Anino as
Resource Management Division Manager. But how can it uphold his appointment when he
was not yet appointed then? It bears stressing that he was appointed on a much later date -
October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals
Board Resolution was issued. Stated differently, the PPA Appeals Board could not uphold an
appointment which was not yet existing.
Equally questionable are the grounds for respondents demotion stated in the August 11, 1998
Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;
and (3) Civil Service Eligibility. These grounds are incomprehensible for lack of discussion or
explanation by the Board to enable respondent to know the reason for her demotion.
We uphold the Court of Appeals finding that the August 11, 1998 PPA Appeals Board
Resolution was void for lack of evidence and proper notice to respondent. As aptly held by
the Appellate Court:
In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the
appointment of the private respondent (Ramon Anino) as Division Manager, the grounds
against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par
3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.
"x x x
To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by
evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or criminal
case at the time of her appointment as Manager. x x x.
With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation
and recommendation of her appointment as Manager II, passed several committees created
by the PPA. x x x. Moreover, she had a 1.9 average performance rating compared to the
private respondent who only got 2.03. x x x.
On eligibility, she has a Career Service Professional eligibility while the private respondent only
has a First Grade Civil Service Eligibility.
She added that she was not aware of any proceeding on her demotion as a Division
Manager. As a matter of fact, it was only upon her iniative sometime during the latter part of
November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the
Appeals Board. The resolution sustained the private respondents appointment as Division
Manager even if on August 11, 1988, he was not yet extended any appointment. As a matter
of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).
Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null
and void. She was never notified of any proceeding; she was not furnished either a copy of
the resolution. What she received instead was a Special Order dated September 29, 1988
already ordering her demotion. She was not at all given the oppurtunity of defending herself
before the Appeals Board.
x x x.
In the case now before us, the petitioner did not receive or was not given a copy of the
August 11, 1988 Resolution of the Appeals Board. She did not even know that she was
demoted until after she received a copy of the of the Special Order No. 479-88.[19]
From all indications, it is indubitable that substantial and procedural irregularities attended
respondents demotion from the position of Manager II, Resource Management Division, to the
lower position of Administrative Officer. Indeed, her demotion, tantamount to a revocation of
her appointment as Manager II, is a patent violation of her constitutional rights to security of
tenure and due process. In Aquino vs. Civil Service Commission,[20] this Court emphasized
that once an appointment is issued and the moment the appointee assumes a position in the
civil service under a completed appointment, he acquires a legal, not merely equitable, right
(to the position) which is protected not only by statute, but also by the constitution, and
cannot be taken away from him either by revocation of the appointment, or by removal,
except for cause, and with previous notice and hearing.
Concededly, the appointing authority has a wide latitude of discretion in the selection and
appointment of qualified persons to vacant positions in the civil service.[21] However, the
moment the discretionary power of appointment is exercised and the appointee assumed
the duties and functions of the position, such appointment cannot anymore be revoked by
the appointing authority and appoint another in his stead, except for cause. Here, no iota of
evidence was ever established to justify the revocation of respondent's appointment by
demoting her. Respondents security of tenure guaranteed under the 1987 Constitution [Article
IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the
appointing power.[22]
Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as
Manager II in the Resource Management Division, it merely restored her appointment to the
said position to which her right to security of tenure had already attached. To be sure, her
position as Manager II never became vacant since her demotion was void. In this jurisdiction,
"an appointment to a non-vacant position in the civil service is null and void ab initio."[23]
We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement of respondent without
awarding backwages. This matter becomes controversial because respondent assumed the
lower position of Administrative Officer during the pendency of her protest against petitioner
Aninos appointment to the contested position. Also, petitioner Anino retired from the service
on November 30, 1997.

In this respect, while petitioner Aninos appointment to the contested position is void, as earlier
discussed, he is nonetheless considered a de facto officer during the period of his
incumbency.[24] A de facto officer is one who is in possession of an office and who openly
exercises its functions under color of an appointment or election, even though such
appointment or election may be irregular.[25] In Monroy vs. Court of Appeals,[26] this Court
ruled that a rightful incumbent of a public office may recover from a de facto officer the
salary received by the latter during the time of his wrongful tenure, even though he (the de
facto officer) occupied the office in good faith and under color of title. A de facto officer, not
having a good title, takes the salaries at his risk and must, therefore, account to the de jure
officer for whatever salary he received during the period of his wrongful tenure. In the later
case of Civil Liberties Union vs. Executive Secretary,[27] this Court allowed a de facto officer to
receive emoluments for actual services rendered but only when there is no de jure officer,
thus:

x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in appropriate action recover the salary, fees and
other compensations attached to the office.

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful
incumbency, is not entitled to the emoluments attached to the office, even if he occupied
the office in good faith. This rule, however, cannot be applied squarely on the present case in
view of its peculiar circumstances. Respondent had assumed under protest the position of
Administrative Officer sometime in the latter part of 1988, which position she currently holds.
Since then, she has been receiving the emoluments, salary and other compensation
attached to such office. While her assumption to said lower position and her acceptance of
the corresponding emoluments cannot be considered as an abandonment of her claim to
her rightful office (Division Manager), she cannot recover full backwages for the period when
she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period
starting from her assumption as Administrative Officer up to the time of her actual
reinstatement to her rightful position as Division Manager. Such backpay differentials pertain
to the difference between the salary rates for the positions of Manager II and Administrative
Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully
assumed the contested position up to the time of his retirement on November 30, 1997.

WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated
June 20, 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is
ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period
from the time he wrongfully assumed the contested position of Manager II up to his retirement
on November 30, 1997.
[De Jure and De Facto Officers]
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES AS
ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR GENERAL,
EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-President,
the Members of the Cabinet, and their deputies or assistants from holding any other office or
employment during their tenure unless otherwise provided in the Constitution. Complementing
the prohibition is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans any
appointive official from holding any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, unless otherwise allowed by law or the primary functions of
his position.
These prohibitions under the Constitution are at the core of this special civil action for certiorari
and prohibition commenced on April 7, 2010 to assail the designation of respondent Hon.
Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the Acting Solicitor
General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo
appointed Agra as the Acting Secretary of Justice following the resignation of Secretary
Agnes VST Devanadera in order to vie for a congressional seat in Quezon Province; that on
March 5, 2010, President Arroyo designated Agra as the Acting Solicitor General in a
concurrent capacity;1 that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a
concerned citizen and a lawyer, commenced this suit to challenge the constitutionality of
Agra’s concurrent appointments or designations, claiming it to be prohibited under Section
13, Article VII of the 1987 Constitution; that during the pendency of the suit, President Benigno
S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz
assumed as the Solicitor General and commenced his duties as such on August 5, 2010.2
Agra renders a different version of the antecedents. He represents that on January 12, 2010,
he was then the Government Corporate Counsel when President Arroyo designated him as
the Acting Solicitor General in place of Solicitor General Devanadera who had been
appointed as the Secretary of Justice;3 that on March 5, 2010, President Arroyo designated
him also as the Acting Secretary of Justice vice Secretary Devanadera who had meanwhile
tendered her resignation in order to run for Congress representing a district in Quezon
Province in the May 2010 elections; that he then relinquished his position as the Government
Corporate Counsel; and that pending the appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General.4
Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for
purposes of resolving the constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and mandamus
brought by herein petitioner assailing the constitutionality of the designation of then
Undersecretary of the Department of Transportation and Communications (DOTC) Maria
Elena H. Bautista as concurrently the Officer-in-Charge of the Maritime Industry Authority. The
petitioner has adopted here the arguments he advanced in Funa v. Ermita, and he has rested
his grounds of challenge mainly on the pronouncements in Civil Liberties Union v. Executive
Secretary6 and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the appointments being
hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between
an appointment or designation of a Member of the Cabinet in an acting or temporary
capacity, on the one hand, and one in a permanent capacity, on the other hand; and that
Acting Secretaries, being nonetheless Members of the Cabinet, are not exempt from the
constitutional ban. He emphasizes that the position of the Solicitor General is not an ex officio
position in relation to the position of the Secretary of Justice, considering that the Office of the
Solicitor General (OSG) is an independent and autonomous office attached to the
Department of Justice (DOJ).8 He insists that the fact that Agra was extended an
appointment as the Acting Solicitor General shows that he did not occupy that office in an ex
officio capacity because an ex officio position does not require any further warrant or
appointment.
Respondents contend, in contrast, that Agra’s concurrent designations as the Acting
Secretary of Justice and Acting Solicitor General were only in a temporary capacity, the only
effect of which was to confer additional duties to him. Thus, as the Acting Solicitor General
and Acting Secretary of Justice, Agra was not "holding" both offices in the strict constitutional
sense.9 They argue that an appointment, to be covered by the constitutional prohibition, must
be regular and permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agra’s concurrent
designation constituted "holding of multiple offices," his continued service as the Acting
Solicitor General was akin to a hold-over; that upon Agra’s designation as the Acting
Secretary of Justice, his term as the Acting Solicitor General expired in view of the
constitutional prohibition against holding of multiple offices by the Members of the Cabinet;
that under the principle of hold-over, Agra continued his service as the Acting Solicitor
General "until his successor is elected and qualified"10 to "prevent a hiatus in the government
pending the time when a successor may be chosen and inducted into office;"11 and that
during his continued service as the Acting Solicitor General, he did not receive any salaries
and emoluments from the OSG after becoming the Acting Secretary of Justice on March 5,
2010.12
Respondents point out that the OSG’s independence and autonomy are defined by the
powers and functions conferred to that office by law, not by the person appointed to head
such office;13 and that although the OSG is attached to the DOJ, the DOJ’s authority, control
and supervision over the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special circumstance" that
justified the non-application to Agra of Section 13, Article VII of the 1987 Constitution;15 that
the temporariness of the appointment or designation is not an excuse to disregard the
constitutional ban against holding of multiple offices by the Members of the Cabinet;16 that
Agra’s invocation of the principle of hold-over is misplaced for being predicated upon an
erroneous presentation of a material fact as to the time of his designation as the Acting
Solicitor General and Acting Secretary of Justice; that Agra’s concurrent designations further
violated the Administrative Code of 1987 which mandates that the OSG shall be autonomous
and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices
for the Members of the Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to assail the validity of the subject act or issuance, that is, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.18
Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution
by the Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a
taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has already been
settled in his favor in rulings by the Court on several other public law litigations he brought. In
Funa v. Villar,19 for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted
liberally on the locus standi requirements and has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a Government act, standing to sue
provided a constitutional issue of critical significance is at stake. The rule on locus standi is
after all a mere procedural technicality in relation to which the Court, in a catena of cases
involving a subject of transcendental import, has waived, or relaxed, thus allowing non-
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the
public interest, albeit they may not have been personally injured by the operation of a law or
any other government act. In David, the Court laid out the bare minimum norm before the so-
called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election law in
question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching
implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit render this suit and the issue tendered herein
moot and academic?
A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use or value. 22
Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the
issue of the constitutionality of the concurrent holding of the two positions by Agra, the Court
should still go forward and resolve the issue and not abstain from exercising its power of
judicial review because this case comes under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not desist from resolving an issue that a
supervening event meanwhile rendered moot and academic if any of the following
recognized exceptions obtained, namely: (1) there was a grave violation of the Constitution;
(2) the case involved a situation of exceptional character and was of paramount public
interest; (3) the constitutional issue raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) the case was capable of repetition, yet
evading review.23
It is the same here. The constitutionality of the concurrent holding by Agra of the two positions
in the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized
exceptions. The issue involves a probable violation of the Constitution, and relates to a
situation of exceptional character and of paramount public interest by reason of its
transcendental importance to the people. The resolution of the issue will also be of the
greatest value to the Bench and the Bar in view of the broad powers wielded through said
positions. The situation further calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many important and practical benefits are still
to be gained were the Court to proceed to the ultimate resolution of the constitutional issue
posed.
2.
Unconstitutionality of Agra’s concurrent designation as Acting Secretary of Justice and Acting
Solicitor General
At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or 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 differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a
case in which the petitioner herein also assailed the designation of DOTC Undersecretary as
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary26 on the intent of the
Framers behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet, their deputies
and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to
be a positive and unequivocal negation of the privilege of holding multiple government
offices or employment. Verily, wherever the language used in the constitution is prohibitory, it
is to be understood as intended to be a positive and unequivocal negation. The phrase
"unless otherwise provided in this Constitution" must be given a literal interpretation to refer
only to those particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agra’s designation was in an acting or temporary capacity. The text
of Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or
government controlled-corporations was concerned.28 In this regard, to hold an office means
to possess or to occupy the office, or to be in possession and administration of the office,
which implies nothing less than the actual discharge of the functions and duties of the
office.29 Indeed, in the language of Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or designation. The prohibition against dual or
multiple offices being held by one official must be construed as to apply to all appointments
or designations, whether permanent or temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the concentration of powers in the Executive
Department officials, specifically the President, the Vice-President, the Members of the
Cabinet and their deputies and assistants.30 To construe differently is to "open the veritable
floodgates of circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the President’s power of appointment in the guise
of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as
officers-in-charge of government agencies, instrumentalities, or government-owned or
controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the holding
of multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article
VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts
occupied by Executive officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and as required by the primary
functions of the officials’ offices. In this regard, the decision in Public Interest Center, Inc. v.
Elma adverted to the resolution issued on August 1, 1991 in Civil Liberties Union v. The
Executive Secretary, whereby the Court held that the phrase "the Members of the Cabinet,
and their deputies or assistants" found in Section 13, supra, referred only to the heads of the
various executive departments, their undersecretaries and assistant secretaries, and did not
extend to other public officials given the rank of Secretary, Undersecretary or Assistant
Secretary.33 Hence, in Public Interest Center, Inc. v. Elma, the Court opined that the
prohibition under Section 13 did not cover Elma, a Presidential Assistant with the rank of
Undersecretary.34
It is equally remarkable, therefore, that Agra’s designation as the Acting Secretary of Justice
was not in an ex officio capacity, by which he would have been validly authorized to
concurrently hold the two positions due to the holding of one office being the consequence
of holding the other. Being included in the stricter prohibition embodied in Section 13, supra,
Agra cannot liberally apply in his favor the broad exceptions provided in Section 7,
paragraph 2, Article IX-B of the Constitution ("Unless otherwise allowed by law or the primary
functions of his position") to justify his designation as Acting Secretary of Justice concurrently
with his designation as Acting Solicitor General, or vice versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the
1987 Constitution. To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding other offices or employment in
the government during their tenure. Respondents’ interpretation that Section 13 of Article VII
admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the highranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their
tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his holding of the other
office was "allowed by law or the primary functions of his position." To claim the exemption of
his concurrent designations from the coverage of the stricter prohibition under Section 13,
supra, he needed to establish herein that his concurrent designation was expressly allowed by
the Constitution. But, alas, he did not do so.
To be sure, Agra’s concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his
concurrent designations been in an ex officio capacity in relation to the other, the Court
might now be ruling in his favor.
The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other appointment or
authority other than that conferred by the office." An ex officio member of a board is one
who is a member by virtue of his title to a certain office, and without further warrant or
appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to "provide the government
with a principal law agency which shall be both its legal counsel and prosecution arm;
administer the criminal justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders and administration of the
correctional system; implement the laws on the admission and stay of aliens, citizenship, land
titling system, and settlement of land problems involving small landowners and members of
indigenous cultural minorities; and provide free legal services to indigent members of the
society."37 The DOJ’s specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel and representative
thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants in criminal cases
and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
(5) Investigate and arbitrate untitled land disputes involving small landowners and members
of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned or controlled corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor
General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the President or
head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall discharge duties requiring the services of
lawyers. It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all civil actions and special proceedings in which
the Government or any officer thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against any person, corporation
or firm for the enforcement of any contract, bond, guarantee, mortgage, pledge or other
collateral executed in favor of the Government. Where proceedings are to be conducted
outside of the Philippines the Solicitor General may employ counsel to assist in the discharge
of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law, executive order
or proclamation, rule or regulation when in his judgment his intervention is necessary or when
requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.
5. Represent the Government in all land registration and related proceedings. Institute actions
for the reversion to the Government of lands of the public domain and improvements thereon
as well as lands held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer of the National Government,
rules and guidelines for government entities governing the preparation of contracts, making
investments, undertaking of transactions, and drafting of forms or other writings needed for
official use, with the end in view of facilitating their enforcement and insuring that they are
entered into or prepared conformably with law and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest requires, any
provincial or city fiscal to assist him in the performance of any function or discharge of any
duty incumbent upon him, within the jurisdiction of the aforesaid provincial or city fiscal. When
so deputized, the fiscal shall be under the control and supervision of the Solicitor General with
regard to the conduct of the proceedings assigned to the fiscal, and he may be required to
render reports or furnish information regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies and offices to assist
the Solicitor General and appear or represent the Government in cased involving their
respective offices, brought before the courts and exercise supervision and control over such
legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or instrumentality of the Government for
such service, assistance and cooperation as may be necessary in fulfilling its functions and
responsibilities and for this purpose enlist the services of any government official or employee
in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and corporations to whom the
Office of the Solicitor General renders legal services are authorized to disburse funds from their
sundry operating and other funds for the latter Office. For this purpose, the Solicitor General
and his staff are specifically authorized to receive allowances as may be provided by the
Government offices, instrumentalities and corporations concerned, in addition to their regular
compensation.
11. Represent, upon the instructions of the President, the Republic of the Philippines in
international litigations, negotiations or conferences where the legal position of the Republic
must be defended or presented.
12. Act and represent the Republic and/or the people before any court, tribunal, body or
commission in any matter, action or proceedings which, in his opinion affects the welfare of
the people as the ends of justice may require; and
13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position was not derived from
the other. Indeed, the powers and functions of the OSG are neither required by the primary
functions nor included by the powers of the DOJ, and vice versa. The OSG, while attached to
the DOJ,40 is not a constituent unit of the latter,41 as, in fact, the Administrative Code of 1987
decrees that the OSG is independent and autonomous.42 With the enactment of Republic
Act No. 9417,43 the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and privileges
as those of the Presiding Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor General, if added to the
equally demanding tasks of the Secretary of Justice, is obviously too much for any one official
to bear. Apart from the sure peril of political pressure, the concurrent holding of the two
positions, even if they are not entirely incompatible, may affect sound government operations
and the proper performance of duties. Heed should be paid to what the Court has pointedly
observed in Civil Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to
be derived from a department head’s ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in haphazardness and
inefficiency. Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being
merely vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless
remained covered by the general prohibition under Section 7, supra. Hence, his concurrent
designations were still subject to the conditions under the latter constitutional provision. In this
regard, the Court aptly pointed out in Public Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official
to hold more than one office only if "allowed by law or by the primary functions of his position."
In the case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection to a
government official occupying two government offices and performing the functions of both
as long as there is no incompatibility." The crucial test in determining whether incompatibility
exists between two offices was laid out in People v. Green - whether one office is subordinate
to the other, in the sense that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x
Where one office is not subordinate to the other, nor the relations of the one to the other such
as are inconsistent and repugnant, there is not that incompatibility from which the law
declares that the acceptance of the one is the vacation of the other. The force of the word,
in its application to this matter is, that from the nature and relations to each other, of the two
places, they ought not to be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and impartially discharge the
duties of one, toward the incumbent of the other. X x x The offices must subordinate, one
[over] the other, and they must, per se, have the right to interfere, one with the other, before
they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of the prohibition provided in Section 13,
Article VII of the 1987 Constitution. Citing the case of US v. Mouat, it specifically identified the
persons who are affected by this prohibition as secretaries, undersecretaries and assistant
secretaries; and categorically excluded public officers who merely have the rank of secretary,
undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by
the constitutional prohibition. The persons cited in the constitutional provision are the
"Members of the Cabinet, their deputies and assistants." These terms must be given their
common and general acceptation as referring to the heads of the executive departments,
their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the
Solicitor General affected thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a
secretary, undersecretary, nor an assistant secretary, even if the former may have the same
rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of
the 1987 Constitution to respondent Elma, he remains covered by the general prohibition
under Section 7, Article IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his appointments are hereby
pronounced in violation of the Constitution.47
Clearly, the primary functions of the Office of the Solicitor General are not related or
necessary to the primary functions of the Department of Justice. Considering that the nature
and duties of the two offices are such as to render it improper, from considerations of public
policy, for one person to retain both,48 an incompatibility between the offices exists, further
warranting the declaration of Agra’s designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting Solicitor General, to be void for being in
violation of the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra’s concurrent appointment; the de facto
officer doctrine
In view of the application of the stricter prohibition under Section 13, supra, Agra did not
validly hold the position of Acting Secretary of Justice concurrently with his holding of the
position of Acting Solicitor General. Accordingly, he was not to be considered as a de jure
officer for the entire period of his tenure as the Acting Secretary of Justice. A de jure officer is
one who is deemed, in all respects, legally appointed and qualified and whose term of office
has not expired.49
That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
Justice. In Civil Liberties Union v. Executive Secretary,50 the Court said:
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held that
"in cases where there is no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. 51 He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public
or third persons who are interested therein are concerned. 53
In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto
Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office. 54
This clarification is necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State. 55 Agra's official actions covered
by this claritlcation extend to but are not limited to the promulgation of resolutions on petitions
for review filed in the Department of Justice, and the issuance of department orders,
memoranda and circulars relative to the prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND VOIDS
the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent
capacity with his position as the Acting Solicitor General for being unconstitutional and
violative of Section 13, Article VII of the 1987 Constitution; and DECLARES that l-Ion. Alberto C.
Agra was a de facto officer during his tenure as Acting Secretary of Justice.
No pronouncement on costs of suit.
SO ORDERED.
[De Jure and De Facto Officers]
[G.R. No. 122197. June 26, 1998]
ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.
DECISION
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated
September 7, 1995,[1] the dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due course. Accordingly,
the disallowance in question in the total amount of P52,908.00 is hereby affirmed. Considering
that the claim for the RATA differential in the amount of P8,400.00 is devoid of any legal basis,
the same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby directed to
refund the salary and RATA differential in the amount of P61,308.00 he had received from the
Provincial Government of Batangas.[2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply
Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then
Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim
for the difference in salary and Representation and Transportation Allowance (RATA) of
Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total
amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed
was only the amount of P8,400.00 which corresponds to the difference in the allowances
attached to the designation and the position occupied by the appellant. The disallowance
was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the
instant case as the power to fill the position of Assistant Provincial Treasurer rests on the
Secretary of Finance.
2. The designation is temporary in nature and does not amount to the issuance of an
appointment as could entitle the designee to receive the salary of the position to which he is
designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated
January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration
of the subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the
same provides that the Governor General or the officer having the power to fill-up a
temporary absence or disability in the provincial office has the power to order or authorize
payment of compensation to any government officer or employee designated or appointed
temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer
for Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for
Administration was no longer performing the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for reconsideration. Appellant was
required to refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the stand of the
Provincial Auditor of Batangas as valid and proper. The respondent Commission was of the
view that the petitioner was merely designated as an Assistant Provincial Treasurer for
Administration in addition to his regular duties. As such, he is not entitled to receive an
additional salary. The Commission further opined that petitioner was likewise not entitled to
receive the difference in RATA provided for under the Local Budget Circular issued by the
Department of Budget and Management considering that the party designating him to such
position is not the duly competent authority, provided for under Section 471 of the Local
Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for
Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount of
P52,908.00 but likewise disallowed the claim for the RATA differential in the amount of
P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to refund the
salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity is
entitled to the difference in salary between his regular position and the higher position to
which he is designated.
Petitioner avers that the respondent Commissions decision is probably not in accordance with
applicable decisions of the Supreme Court.[3] He cites the cases of Cui, et. al. vs. Ortiz, et.
al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,[5] which laid down the rule that de
facto officers are entitled to salary for services actually rendered. Petitioner contends that he
may be considered as a de facto officer by reason of services rendered in favor of the
Province of Batangas. He then posits the view that to disallow his compensation and in the
process allow the Province of Batangas to keep and enjoy the benefits derived from his
services actually rendered would be tantamount to deprivation of property without due
process of law, and impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor General,
maintains that the decisions cited by petitioner do not find application in petitioners case. In
the case of Menzon, what was extended was an appointment to the vacant position of Vice-
Governor. Here, what was extended to petitioner was not an appointment but a mere
designation. Thus, the nature of petitioners designation and in the absence of authority of the
Governor to authorize the payment of the additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers
applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still claim the salary and RATA
differential because he actually performed the functions pertaining to the office of Acting
Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it
despite the fact that the Governor of Batangas had no authority to designate him to the said
position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government
Code which mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed by the Secretary
of Finance from a list of at least three (3) ranking eligible recommendees of the governor or
mayor, subject to civil service law, rules and regulations.
xxx xxx xxx
In fact, the appointing officer is authorized by law to order the payment of compensation to
any government officer or employee designated or appointed to fill such vacant position, as
provided under Section 2077 of the Revised Administrative Code which states that:
"Section 2077. Compensation for person appointed to temporary service.
xxx xxx xxx
In case of the temporary absence or disability of a provincial officer or in case of a vacancy
in a provincial office, the President of the Philippines or officer having the power to fill such
position may, in his discretion, order the payment of compensation, or additional
compensation, to any Government officer or employee designated or appointed temporarily
to fill the place, but the total compensation paid shall not exceed the salary authorized by
law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor
even designate one temporarily in cases of temporary absence or disability or a vacancy in a
provincial office. That power resides in the President of the Philippines or the Secretary of
Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer for Administration by
Governor Mayo being defective, confers no right on the part of petitioner to claim the
difference in the salaries and allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a designation not
an appointment. The respondent Commission clearly pointed out the difference between an
appointment and designation, thus:
There is a great difference between an appointment and designation. While an appointment
is the selection by the proper authority of an individual who is to exercise the powers and
functions of a given office, designation merely connotes an imposition of additional duties,
usually by law, upon a person already in the public service by virtue of an earlier appointment
(Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional duties on the officer or
employee to be performed by him in a special manner. It does not entail payment of
additional benefits or grant upon the person so designated the right to claim the salary
attached to the position (COA Decision No. 95-087 dated February 2, 1995). As such, there
being no appointment issued, designation does not entitle the officer designated to receive
the salary of the position. For the legal basis of an employees right to claim the salary
attached thereto is a duly issued and approved appointment to the position (Opinion dated
January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A.
Jr., Designation).[6]
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given by the
agency or entity charged with the enforcement of a statute should be given great weight
and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at
bar, has been uniform, and consistent, and has been observed and acted on for a long
period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine
Sugar Central vs. Collector of Customs, 51 Phil. 143).[7]
We see no justifiable reason to sustain petitioners argument that non-payment of his salary
differential and RATA would be a violation of his constitutional right against deprivation of
property without due process of law and the non-impairment of obligation of contracts
clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the
appointment or designation thereof was made in accordance with law. Considering that
petitioners designation was without color of authority, the right to the salary or an allowance
due from said office never existed. Stated differently, in the absence of such right, there can
be no violation of any constitutional right nor an impairment of the obligation of contracts
clause under the Constitution.
The nature of petitioners designation and the absence of authority of the Governor to
authorize the payment of the additional salary and RATA without the appropriate resolution
from the Sangguniang Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is valid on its
face. It is likewise defined as one who is in possession of an office, and is discharging its duties
under color of authority, by which is meant authority derived from an appointment, however
irregular or informal, so that the incumbent be not a mere volunteer.[8] Then a de facto
officer is one who is in possession of an office in the open exercise of its functions under color
of an election or an appointment, even though such election or appointment may be
irregular.[9]
Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto officer is
entitled to receive the salary for services actually rendered. However, his reliance on the
Menzon case is misplaced. In Menzon, what was extended was an appointment to the
vacant position of Vice-Governor, in petitioners case, he was designated. The appointment of
Menzon had the color of validity. This Court said:
And finally, even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least, the petitioner is
a de facto officer entitled to compensation. There is no denying that the petitioner assumed
the Office of the Vice-Governor under a color of a known appointment. As revealed by the
records, the petitioner was appointed by no less than the alter ego of the President, The
Secretary of Local Government, after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity.

Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does not apply in petitioners case. In
Cui, this Court held:

Petitioners appointments on December 1 and 12, 1955 by the then mayor of the municipality
were legal and in order, the appointing mayor still in possession of his right to appoint. For such
appointments to be complete, the approval of the President of the Philippines is required. The
law provides that pending approval of said appointment by the President, the appointee
may assume office and receive salary for services actually rendered. Accordingly, therefore,
in that duration until the appointment is finally acted upon favorably or unfavorably, the
appointees may be considered as de facto officers and entitled to salaries for services
actually rendered.

Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July
8, 1994. Petitioners claim that the appointment retro-acts to his assumption of office is not
confirmed by the express phraseology of the appointment itself, which states:

Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may

katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod
na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay
magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng
puno ng tanggapan o appointing authority.[12]

The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify
petitioners retention of the excess amount of P61,308.00, which corresponds to the amount
disallowed and ordered refunded by COA representing the salary and RATA in excess of what
was due him in 1993.

WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
[De Jure and De Facto Officers]
G.R. No. 185224 July 29, 2015
AMELIA CARMELA CONSTANTINO ZOLETA, Petitioner,
vs.
THE HONORABLE SANDIGANBAYAN [FOURTH DIVISION] and PEOPLE OF THE PHILIPPINES,
Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 filed by petitioner Amelia Carmela
Constantino Zoleta assailing the November 5, 2008 decision2 of the Sandiganbayan (Fourth
Division) in Criminal Case No. 28326.
The case stemmed from an anonymous complaint filed against the petitioner, Mary Ann
Gadian, and Sheryll Desiree Tangan before the Office of the Ombudsman-Mindanao
(Ombudsman) for participating in the scheme of questionable grants and donations to
fictitious entities using provincial funds. As a result of this complaint, the Commission on Audit
(COA) conducted a special audit in Sarangani Province. Among the irregularities discovered
by the Special Audit Team was a ₱20,000.00 financial assistance given to Women in Progress
(WIP), a cooperative whose members were mostly government personnel or relatives of the
officials of Sarangani Province.
The COA Special Audit Team submitted its report to the Ombudsman which, in turn,
conducted a preliminary investigation. Thereafter, the Ombudsman, through the Office of the
Special Prosecutor, charged the petitioner, Vice-Governor Felipe Constantino, Violeta
Bahilidad, Maria Camanay, and Teodorico Diaz with malversation of public funds by
falsification of public documents defined and penalized under Article 217 in relation to Article
171(2) and Article48 of the Revised Penal Code, as amended, before the Sandiganbayan in
an Information which reads: That on January 24, 2002 or prior or subsequent thereto in
Sarangani, Philippines, and within the jurisdiction of this Honorable Court, accused Felipe Katu
Constantino, a high-ranking public officer, being the Vice-Governor of the Province of
Sarangani, Maria D. Camanay, Provincial Accountant, Teodorico F. Diaz, Provincial Board
Member, Amelia Carmela C. Zoleta, Executive Assistant III, all accountable public officials of
the Provincial Government of Sarangani, by reason of the duties of their office, conspiring and
confederating with Violita Bahilidad, private individual, the public officers, while committing
the offense in relation to office, taking advantage of their respective positions, did then and
there wilfully, unlawfully and feloniously take, convert and misappropriate the amount of
TWENTY THOUSAND PESOS (₱20,000.00), Philippine Currency, in public funds under their
custody, and for which they are accountable, by falsifying or causing to be falsified the
corresponding Disbursement Voucher No. 101-2002-01-822 and its supporting documents,
making it appear that financial assistance had been sought by Women In Progress,
Malungon, Sarangani, represented by its President, Amelia Carmela C. Zoleta, when in truth
and in fact, the accused knew fully well that no financial assistance had been requested by
the said group and her association, nor did Amelia Carmela C. Zoleta and her association
receive the aforementioned amount, thereby facilitating the release of the above-mentioned
public funds in the amount of TWENTY THOUSAND PESOS (₱20,000.00)through encashment by
the accused at Land Bank of the Philippines (LBP) Check No. 36481 dated January 24, 2002
issued in the name of the Violeta Bahilidad, which amount they subsequently
misappropriated to their personal use and benefit and despite demand, the said accused
failed to return the said amount to the damage and prejudice of the government and the
public interest of the aforesaid sum.
CONTRARY TO LAW.3 (Emphasis in the original.)
On arraignment, the petitioner, Vice-Governor Constantino and Bahilidad pleaded "not
guilty." Diaz and Camanay, on the other hand, remained at large.
On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.4 The People of the
Philippines, though the Office of the Special Prosecutor, filed its Comment and Ex Parte
Motion to Include Testimonial Evidence and Issue to Pre-trial Order5 essentially claiming that
the Pre-trial Order did not reflect certain testimonial evidence "as stated during the Pre-Trial."6
In its Order7 dated April 5, 2006, the Sandiganbayan amended certain portions of the Pre-trial
Order.
On April 25, 2006, Vice-Governor Constantino died in a vehicular accident, resulting in the
dismissal of the case against him.
In its decision dated November 5,2008, the Sandiganbayan found the petitioner and
Bahilidad guilty beyond reasonable doubt of the crime charged, and sentenced them to
suffer the indeterminate penalty of fourteen (14) years, eight (8) months and one (1) day, as
minimum, to sixteen (16) years, five (5) months, and eleven (11) days of reclusion temporal, as
maximum. It also imposed on them the additional penalty of perpetual disqualification from
holding any public office. The Sandiganbayan likewise directed them to pay back the
Province of Sarangani ₱20,000.00 plus interest, computed from January 2002 until fully paid.8
The Sandiganbayan held that Vice-Governor Constantino had control and custody of the
funds by reason of his office, and that his signature was needed before a grant, donation, or
assistance could be released to a requesting party. According to the Sandiganbayan, Vice-
Governor Constantino approved the ₱20,000.00 disbursement despite the lack of the required
documentation.
The Sandiganbayan further ruled that Vice-Governor Constantino conspired with the other
accused in using a dummy organization WIP to facilitate the malversation. It explained that
the petitioner, who was Vice-Governor Constantino’s own daughter and who held the
position of Executive Assistant III in his office, committed the following acts: (a) ordered Mary
Ann Gadian, a computer operator at the Office of the Sangguniang Panlalawigan of
Sarangani, to make a letter-request for financial assistance using a nonexistent cooperative;
(b) directed Jane Tangan, the Local Legislative Staff Officer of the Office of the Vice-
Governor, to falsify the signature of WIP’s secretary, Melanie Remulta, on the request-letter;
and (c) certified and approved the disbursement voucher; and then presented it to Diaz,
Camanay, and Vice-Governor Constantino for their respective signatures.
The Sandiganbayan likewise ruled that falsification was a necessary means to commit the
crime of malversation.
THE PETITION FOR REVIEW ON CERTIORARI
In the present petition, the petitioner argued that: (a) the Sandiganbayan’s November 5, 2008
decision in Criminal Case No. 28326 was void because one of its signatories, Justice Gregory
Ong, was not a natural-born Filipino citizen per Kilosbayan Foundation v. Exec. Sec. Ermita,9
and hence not qualified to be a Sandiganbayan justice; (b) the totality of evidence
presented by the prosecution was insufficient to overcome the petitioner’s presumption of
innocence; and (c) the Sandiganbayan denied her due process when it issued its Order
dated April 5, 2006, amending certain portions of the pre-trial order without any hearing.
In its Comment,10 the People countered that Kilosbayan merely required Justice Ong to
complete "all necessary steps, through the appropriate adversarial proceedings in court, to
show that he is a natural born Filipino citizen and correct the records of his birth and
citizenship." It added that Kilosbayan did not categorically rule that Justice Ong was not a
natural-born Filipino who was disqualified from accepting an appointment to the position of
Associate Justice of this Court. The People further pointed out that the Court in Topacio v.
Ong11 already acknowledged Justice Ong’s actual physical possession and exercise of the
functions of the office of an Associate Justice of the Sandiganbayan.
The People likewise argued that the issue of sufficiency of the prosecution evidence is a
question of fact which is beyond the province of a petition for review on certiorari. It
nonetheless maintained that the Sandiganbayan’s findings were supported by the evidence
on record.
On the third issue, the People maintained that a person charged with willful malversation can
validly be convicted of malversation through negligence.
OUR RULING
We DENY the petition.
I. The Sandiganbayan’s November 5, 2008 decision is valid
The petitioner’s reliance in Kilosbayan to challenge the validity of the Sandiganbayan’s
decision is misplaced.
We point out that Kilosbayana rose from a petition for certiorari filed by both Kilosbayan
Foundation and Bantay Katarungan – both non-governmental organizations engaged in
public and civic causes – assailing then President Gloria Macapagal-Arroyo’s appointment of
Justice Ong as an Associate Justice of the Court on the ground that the latter was not a
natural born citizen. Contrary to the petitioner’s claim, Kilosbayan did not rule that Justice
Ong was not a natural-born Filipino (and hence unqualified to assume the position of a
Sandiganbayan Justice). The Court merely stated that Justice Ong cannot accept an
appointment to the position of Associate Justice of the Supreme Court or assume the position
of that office, "until he shall have successfully completed all the necessary steps, through the
appropriate adversarial proceedings in court to show that he is a natural-born Filipino citizen
and correct the records of his birth and citizenship."12
At any rate, the Court has long settled the issue of Justice Ong’s citizenship. After the Court
promulgated Kilosbayan, Justice Ong immediately filed with the Regional Trial Court (RTC),
Branch 264, Pasig City, a petition for the amendment/ correction/ supplementation or
annotation of an entry in [his] Certificate of Birth, docketed as S.P. Proc No. 11767-SJ. In its
decision of October 24, 2007, the RTC13 granted Justice Ong's petition to be recognized as a
natural-born Filipino. Consequently, the RTC directed the Civil Registrar of San Juan, Metro
Manila to annotate in the Certificate of Birth of Justice Ong its (RTC’s) decision.
The RTC denied the motions moving for a reconsideration of its decision.
In its six-page resolution in 2013, the Court En Banc also held that Justice Ong was a natural-
born citizen, thus:
The pronouncements of the Court in both GR No. 179895 and GR No. 180543, and the finality
of the decision rendered by the RTC on October 24, 2007,in S.P. No. 11767-SJrecognizing
Justice Ong as a natural born citizen of the Philippines and directing the correction of the
existing records of his birth and citizenship have already definitively settled the subject of the
query posed by SP Villa-Ignacio.14
Even without this ruling, we hold that Justice Ong was a de facto officer during the period of
his incumbency as a Sandiganbayan Associate Justice. A de facto officer is one who is in
possession of an office and who openly exercises its functions under color of an appointment
or election, even though such appointment or election may be irregular.15 It is likewise
defined as one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent be not a mere volunteer.16 Consequently, the acts of the de
facto officer are as valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.17
In the light of these considerations, we find no basis to invalidate the November 5, 2008
decision of the Sandiganbayan in Criminal Case No. 28326.
II. Only questions of law should be raised in a Rule 45 petition
It is settled that the appellate jurisdiction of the Supreme Court over decisions and final orders
of the Sandiganbayan is limited only to questions of law; it does not review the factual findings
of the Sandiganbayan which, as a general rule, are conclusive upon the Court.
A question of law exists when there is doubt or controversy as to what the law is on a certain
state of facts. On the other hand, a question of fact exists when the doubt or controversy
arises as to the truth or falsity of the alleged facts. The resolution of a question of fact
necessarily involves a calibration of the evidence, the credibility of the witnesses, the
existence and the relevance of surrounding circumstances, and the probability of specific
situations.18
In the present petition, the petitioner alleges that the presented evidence were insufficient to
support a conviction. She thus seeks a re-evaluation of the Sandiganbayan’s appreciation of
the evidence presented, including the credibility of witnesses and the probative value of their
testimonies. The petitioner likewise wants the Court to take a closer look into her claim that the
charges against them were politically motivated.
To our mind, the Sandiganbayan’s findings that: the testimonies of Gadian and Tangan were
credible and worthy of belief; WPI was an unregistered cooperative; the signatures of the
petitioner and her co-accused on the disbursement voucher were authentic; Remulta’s
signature had been forged; and the charges against the accused were not politically
motivated, are questions of fact, as these matters were resolved after a calibration of the
pieces of evidence presented during trial. The Court will not anymore weigh these pieces of
evidence in the absence of a clear showing that these findings had been arrived at arbitrarily
or are devoid of support in the records.
At any rate, we hold that the Sandiganbayan correctly convicted the petitioner of the
complex crime of malversation of public funds through falsification of public documents.
Malversation may be committed by appropriating public funds or property; by taking or
misappropriating the same; by consenting, or through abandonment or negligence, by
permitting any other person to take such public funds or property; or by being otherwise guilty
of the misappropriation or malversation of such funds or property.19
The elements common to all acts of malversation under Article 217 of the Revised Penal
Code, as amended, are the following: (a) that the offender be a public officer; (b) that he
had custody or control of funds or property by reason of the duties of his office; (c) that those
funds or property were public funds or property for which he was accountable; and (d) that
he appropriated, took, misappropriated or consented, or through abandonment or
negligence, permitted another person to take them. All these elements have been
established by the prosecution.
First, it is undisputed that all the accused, except Bahilidad, are all public officers. A public
officer is defined in the Revised Penal Code as "any person who, by direct provision of the law,
popular election, or appointment by competent authority, shall take part in the performance
of public functions in the Government of the Philippine Islands, 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 class. Constantino was the Vice-Governor of Sarangani Province, while
the petitioner, Camanay, and Diaz were occupying the positions of Executive Assistant (at the
Office of the Vice-Governor), Provincial Accountant, and Provincial Board Member,
respectively.
Second, the funds misappropriated are public in character, as they were funds belonging to
the Province of Sarangani.
Third, Vice-Governor Constantino and Camanay were accountable public officers. Under the
Government Auditing Code of the Philippines, an accountable public officer is a public
officer who, by reason of his office, is accountable for public funds or property. The Local
Government Code expanded this definition with regard to local government officials. Section
340 of the LGC reads:
Section 340. Persons Accountable for Local Government Funds. – Any officer of the local
government unit whose duty permits or requires the possession or custody of local
government funds shall be accountable and responsible for the safekeeping thereof in
conformity with the provisions of this title. Other local officials, though not accountable by the
nature of their duties, may likewise be similarly held accountable and responsible for local
government funds through their participation in the use or application thereof. (Emphasis
ours.)
Local government officials become accountable public officers either (1) because of the
nature of their functions; or (2) on account of their participation in the use or application of
public funds.20
As a required standard procedure, the signatures of, among others, the Vice-Governor and
the Provincial Accountant are needed before any disbursement of public funds can be
made. No checks can be prepared and no payment can be effected without their signatures
on a disbursement voucher and the corresponding check. In other words, any disbursement
and release of public funds require their approval. Thus, Constantino and Camanay, in their
capacities as Vice-Governor and Provincial Accountant, had control and responsibility over
the subject funds.
Finally, Vice-Governor Constantino and Camanay appropriated, took, misappropriated or
consented, or through abandonment or negligence, permitted another person to take the
public funds when they signed Disbursement Voucher No. 101-2002-01-822. The term voucher,
when used in connection with disbursement of money, implies some instrument that shows on
what account or by what authority a particular payment has been made, or that services
have been performed which entitle the party to whom it is issued to payment. Corollarily,
when an authorized person approves a disbursement voucher, he certifies to the correctness
of the entries therein, among others: that the expenses incurred were necessary and lawful,
the supporting documents are complete, and the availability of cash therefor. He also attests
that the person who performed the services or delivered the supplies, materials, or equipment
is entitled to payment.21
Notably, the signatures of Camanayand Vice-Governor Constantino also appeared on the
Allotment and Obligation Slip (ALOBS) and in Land Bank Check No. 0000036481, respectively.
Their respective signatures in these documents allowed Bahilidad to encash ₱20,000.00. We
also point out that although the purported request was made by the WIP, the check was
made payable to a private person, that is, Bahilidad. According to Helen Cailing, the leader
of the COA Special Audit Team, there were no supporting documents attached to this
disbursement voucher proving that Bahilidad was indeed the treasurer of WIP.
We also agree with the Sandiganbayan’s ruling that falsification was a necessary means to
commit the crime of malversation. Article 171, paragraphs (2) and (5) of the Revised Penal
Code, provides:
ART. 171. Falsification by public officer, employee or notary or ecclesiastic 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 who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
xxxx
2. Causing it to appear that persons have participated in any act or proceeding when they
did not in fact so participate;
xxxx
In the present case, the records showed that the petitioner ordered Tangan to sign above the
name of Remulta in the letter-request to make it appear that the latter, as WIP Secretary,
consented to the request for financial assistance. We note, too, that this letter-request was
made on January 24, 2002, but Gadianante dated it to January 7, 2002, so that the
transaction would not look suspicious (considering that both the disbursement voucher and
check were also dated January 24, 2002).
The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy does not need to be proven by
direct evidence and may be inferred from the conduct ―before, during, and after the
commission of the crime ― indicative of a joint purpose, concerted action, and concurrence
of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one
concurs with the criminal design of another, as shown by an overt act leading to the crime
committed. It may be deduced from the mode and manner of the commission of the
crime.22
In the present case, the records established with moral certainty that the petitioner and her
co-accused acted in concert to achieve a common objective. The presence of conspiracy
between the petitioner and her co-accused was explained by the Sandiganbayan as follows:
xxxx
Moreover, the testimony of Gadian and Tangan indubitably established that accused
Constantino and Zoleta took advantage of their official positions. Zoleta ordered Gadian to
make a request using a nonexistent cooperative. She ordered Tangan to falsify the signature
of Remulta in the request letter. Both followed the directive of Zoleta, being their superior, the
Executive Assistant and the daughter of the Vice-Governor who places her initials before the
Vice-Governor affixes his own signature. Despite the irregularity, accused Constantino
approved the disbursement. The facts taken together would prove the existence of
conspiracy. Zoleta, as president of an in existent association and a co-terminous employee at
the office of her father, initiated the request for obligation of allotments and certified and
approved the disbursement voucher. There is no doubt that Constantino facilitated the illegal
release of the fund by signing the questioned voucher. Without the signatures of accused
Constantino, Zoleta, and Bahilidad, the amount could not have been disbursed on that
particular day. When the voucher with its supporting documents was presented to accused
Constantino, Diaz, and Camanay for approval and signature, they readily signed them
without further ado, despite the lack of proper documentation and noncompliance of the
rules. Zoleta had contact with the payee of the check, Bahilidad, and received the amount.
Their combined acts, coupled with the falsification of the signature of Remulta, all lead to the
conclusion that the accused conspired to defraud the government.
The concurrence of wills or unity of purpose and action between the accused is
indubitable.1âwphi1 A careful scrutiny of the records revealed that indeed: (a) the petitioner
signed the letter-request for financial assistance, and this was approved by Diaz and Vice-
Governor Constantino; (b) the ALOBS was signed by Camanay; (c) Disbursement Voucher No.
101-2002-01-822 was signed by Vice-Governor Constantino, Diaz and Camanay; and (d) Land
Bank Check No. 0000036481 was signed by Vice-Governor Constantino.
The connivance between the accused is made more glaring by the fact that the entire
transaction – from the letter-request, to the approval of the disbursement voucher, until the
processing and release of the check – was completed in only one day. We note, too, that the
disbursement had been approved even without the required supporting documents such as
the Articles of Cooperation and Certificate from the Cooperative Development Authority.
There was also noncompliance with the COA-prescribed auditing and accounting guidelines
on the release of fund assistance to NGOs, such as the required monitoring and inspection
report either by the Office of the Provincial Agriculturist or the Provincial Engineering Office. As
earlier stated, the purported request was made by WIP, but the check was made payable to
Bahilidad (despite the COA’s findings that there were no supporting documents proving that
she was WIP’s treasurer). We are aware that Bahilidad was acquitted by this Court in G.R. No.
18519523 – a case where she questioned her conviction by the Sandiganbayan. This does not
preclude us, however, from ruling that the other accused, i.e., Vice-Governor Constantino,
Diaz, Camanay, and the petitioner, conspired with each other to attain a common objective.
We point out that Bahilidad’s acquittal was anchored on the fact that she had no hand in the
preparation, processing or disbursing of the check issued in her name. It cannot be denied in
the present case that the petitioner, Vice-Governor Constantino, Diaz, and Camanay, all
participated in the preparation and processing of Disbursement Voucher No. 101-2002-01-
82224 as evidenced by their respective signatures affixed there. Sanggunian Panlalawigan
Bookbinder25 Gadian, in fact, witnessed Vice-Governor Constantino, Camanay, and Diaz
sign these documents.
In Barriga v. Sandiganbayan,26 we ruled that:
It must be stressed that a public officer who is not in charge of public funds or property by
virtue of her official position, or even a private individual, may be liable for malversation or
illegal use of public funds or property if such public officer or private individual conspires with
an accountable public officer to commit malversation or illegal use of public funds or
property.
III. No denial of due process
The petitioner claims that he was denied due process when the Sandiganbayan granted the
prosecution’s motion to amend certain portions of the pre-trial order without any hearing. In
essence, the petitioner argues that she could not be convicted of malversation through
consent, abandonment, or negligence because this allegation was not contained in the
Information.
The petitioner’s argument lacks merit.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present
in the offense is only a modality in the perpetration of the felony. Even if the mode charged
differs from the mode proved, the same offense of malversation is involved and conviction
thereof is proper. All that is necessary for conviction is sufficient proof that the accountable
officer had received public funds, that he did not have them in his possession when demand
therefor was made, and that he could not satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the accused is hardly necessary as long as the
accused cannot explain satisfactorily the shortage in his accounts.27
In People v. Consigna, et al.,28 the Court first ruled that an accused charged with wilful
malversation can be validly convicted of malversation through negligence where the
evidence sustains the latter mode of perpetrating the offense.
Similarly, in People v. Ochoa,29 the Court stated that [e]ven when the Information charges
wilful malversation, conviction for malversation through negligence may still be adjudged if
the evidence ultimately proves that mode of commission of the offense.
In Tubola, Jr. v. Sandiganbayan,30 we affirmed the accused’s conviction of malversation of
public funds under Article 217 of the Revised Penal Code, and reasoned out as follows:
Besides, even on the putative assumption that the evidence against petitioner yielded a case
of malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still
be in order. Malversation is committed either intentionally or by negligence. The dolo or the
culpa present in the offense is only a modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the same offense of malversation is involved
and conviction thereof is proper. A possible exception would be when the mode of
commission alleged in the particulars of the indictment is so far removed from the ultimate
categorization of the crime that it may be said due process was denied by deluding the
accused into an erroneous comprehension of the charge against him. That no such prejudice
was occasioned on petitioner nor was he beleaguered in his defense is apparent from the
records of this case. (Underscoring and emphasis in the original.)

The Proper Penalty

We modify the maximum term of the penalty imposed on the petitioner by the
Sandiganbayan, from sixteen (16) years, five (5) months, and eleven (11) days to eighteen
(18) years, two (2) months, and twenty one (21) days of reclusion temporal, in accordance
with Articles 48 and 21 7 of the Revised Penal Code, as amended, in relation to the
Indeterminate Sentence Law.31 WHEREFORE, in the light of all the foregoing, we DENY the
petition. Accordingly, we AFFIRM the November 5, 2008 decision of the Sandiganbayan
(Fourth Division) in Criminal Case No. 28326 with the MODIFICATION that the maximum term of
the penalty imposed on the petitioner be increased from sixteen ( 16) years, five ( 5) months,
and eleven (11) days to eighteen (18) years, two (2) months and twenty one (21) days of
reclusion temporal.

SO ORDERED.
[De Jure and De Facto Officers]
A.M. No. 13-04-03-SC December 10, 2013
RE: NOMINATION OF ATTY. LYNDA CHAGUILE, IBP IFUGAO PRESIDENT, AS REPLACEMENT FOR IBP
GOVERNOR FOR NORTHERN LUZON, DENIS B. HABAWEL
x---------------x
A.M. No. 13-05-08-SC
RE: ALLEGED NULLITY OF THE ELECTION OF IBP SOUTHERN LUZON GOVERNOR VICENTE M. JOYAS
AS IBP EXECUTIVE VICE PRESIDENT [FOR 2011-2013]
x---------------x
A.M. No. 13-06-11-SC
RE: LETTER RESQUEST OF THE NATIONAL SECRETARY OF THE IBP RE PROPOSED OATH TAKING
BEFORE THE SUPREME COURT OF THE ELECTED IBP REGIONAL GOVERNORS AND THE EXECUTIVE
VICE PRESIDENT FOR THE TERM 2013 TO 2015
RESOLUTION
LEONEN, J.:
This is yet another controversy involving the leadership of the Integrated Bar of the Philippines
(IBP) that could have been resolved at the Integrated Bar of the Philippines’ level but was
instead referred to this aking away precious resources that could have been better applied to
resolve other conflicts for the public interest.
The consolidated cases involve two Administrative Matters. The first Administrative Matter
(A.M. No. 13-04-03-SC) arose from a Motion filed by Atty. Marlou B. Ubano, IBP Governor for
Western Visayas. Atty. Ubano sought to invalidate or have this Court declare as ultra vires the
portion of the March 21, 2013 Resolution of the IBP Board of Governors which approved the
nomination of Atty. Lynda Chaguile as replacement of IBP Governor for Northern Luzon, Denis
B. Habawel. The second Administrative Matter arose from another Motion filed by Atty. Ubano
who sought to nullify the May 22, 2013 election for IBP Executive Vice President (EVP) and
restrain Atty. Vicente M. Joyas from discharging the duties of IBP EVP/Acting President. In a
Resolution dated June 18, 2013, this Court consolidated the second Administrative Matter with
the first.
A.M. No. 13-04-03-SC
The first Administrative Matter is an incident arising from: (1) A.M. No. 09-5-2-SC (In the Matter
of the Brewing Controversies in the Election in the· Integrated Bar of the Philippines, Atty.
Marven B. Daquilanea, Movant-Intervenor; Presidents of IBP Chapter in Western Visayas
Region, Intervenors; IBP Capiz Chapter, Intervenor); and (2) A.C. No. 8292 (Attys. Marcial M
Magsino, Manuel M Maramba, and Nasser Marohomsalic v. Attys. Rogelio A. Vinluan,
Abelardo C. Estrada, Bonifacio T. Barandon, Jr., Evergisto S. Escalon, and Raymund Jorge A.
Mercado).
On March 27, 2013, Atty. Marlou B. Ubano, IBP Governor for Western Visayas, filed a Motion
(Original Motion) in relation to A.M. No. 09-5-2-SC. Atty. Ubano sought to invalidate or have
this Court declare as ultra vires the portion of the March 21, 2013 Resolution of the IBP Board of
Governors which approved the nomination of Atty. Lynda Chaguile as the replacement of IBP
Governor for Northern Luzon, Denis B. Habawel. In this Original Motion, Atty. Ubano noted that
on December 4, 2012, this Court approved an amendment to Article I, Section 4 of the IBP By-
Laws which considers as ipso facto resigned from his or her post any official of the Integrated
Bar of the Philippines who files a Certificate of Candidacy for any elective public office. Under
the amended By-Laws, the resignation takes effect on the starting date of the official
campaign period.1 Atty. Ubano alleged that the IBP Governor for Northern Luzon, Denis B.
Habawel, filed a Certificate of Candidacy to run for the position of Provincial Governor of the
Province of Ifugao on or before October 5, 2012, and that on or before December 21, 2012,
IBP President, Roan Libarios, filed a Certificate of Substitution to run as a substitute
congressional candidate for the First District of Agusan del Norte.2
Atty. Ubano further alleged that "[i]n light of the impending ipso facto resignation of Pres.
Libarios on 30 March 2013,"3 the IBP Board of Governors agreed to constitute a five (5)-
member Executive Committee (Ex Com) to "prevent hiatus in the leadership of the IBP."4 The
Executive Committee was "tasked to temporarily administer the affairs of the IBP without
prejudice to the outcome of the Honorable Court’s resolution of the pending incident."5 Atty.
Ubano also alleged that Atty. Habawel nominated Atty. Lynda Chaguile, IBP Ifugao Chapter
President, as his successor to the position of IBP Governor for Northern Luzon.6 Atty. Ubano
claimed that Atty. Libarios began "dictating the tenor of the IBP [Board of Governors]
Resolution about the creation of Ex Com"7 and, without prior deliberation and voting,
declared that the Board of Governors approved the succession of Atty. Chaguile as IBP
Governor for Northern Luzon. Atty. Ubano, together with two (2) other IBP Governors, allegedly
objected. However, when the matter was put to a vote, the other governors, Atty. Habawel
included, approved Atty. Chaguile’s replacement of Atty. Habawel as IBP Governor for
Northern Luzon.8
In this Original Motion, Atty. Ubano challenged the IBP Board of Governor’s approval of Atty.
Chaguile’s succession as IBP Governor for Northern Luzon on two grounds: First, there was, as
yet, no vacancy. Atty. Habawel was himself present at the meeting where his replacement
was named. There was, therefore, no need to name a replacement.9 Second, the right to
elect the successor of a resigned IBP Governor is vested, not in the IBP Board of Governors, but
in the delegates of the concerned region; thus, the IBP Board of Governors’ approval of the
nominee to succeed Atty. Habawel is ultra vires.10In support of this second ground, Atty.
Ubano cited the third paragraph of Section 44 of the IBP By-Laws: Sec. 44. Removal of
members. x x x x x x[x] In case of any vacancy in the office of Governor for whatever cause,
the delegates from the region shall by majority vote, elect a successor from among the
members of the Chapter to which the resigned governor is a member to serve as governor for
the unexpired portion of the term.11 In a Resolution dated April 2, 2013, this Court resolved to
treat this Original Motion as an Administrative Matter separate from A.M. No. 09-5-2-SC and
A.C. No. 8292. It was re-docketed as A.M. No. 13-04-03-SC. This Court required the IBP Board of
Governors to file its Comment. In its Comment, the IBP Board of Governors assailed the first
ground raised by Atty. Ubano by saying that it was not necessary for a position to be
absolutely vacant before a successor may be appointed or elected.12 As for the second
ground, the IBP Board of Governors argued that it has been the "tradition"13 of the Integrated
Bar of the Philippines that "where the unexpired term is only for a very short period of time, it is
usually the Board of Governors which appoint [sic]a replacement or an officer in charge to
serve the unexpired term."14 The IBP Board of Governors cited seven (7) precedents attesting
to this "tradition":
1. On January 24, 1979, the IBP Board of Governors "unanimously resolved to designate Jose F.
Lim, Vice President of the IBP Samar Chapter, [as]acting Governor and ex-oficio Vice
President for Eastern Visayas in view of the absence of Gov. Juan G. Figueroa."15
2.On June 1, 1984, the IBP Board of Governors approved the replacements of two (2)
governors who resigned to run in the Batasang Pambansa elections:
a. The President of the IBP Baguio-Benguet Chapter, Reynaldo A. Cortes, was elected by the
IBP Board of Governors to replace Gov. Honorato Aquino who himself nominated Cortes;
b."The President of the IBP Southern Leyte Chapter, Porfirio P. Siaynco, was elected by the
Board to replace Gov. Cirilo Montejo."16
3. On January 27, 1989, the IBP Board of Governors "elected Nancy Sison Roxas, Treasurer of
the House of Delegates, as Governor for Central Luzon" in lieu of Cesar L. Paras, who passed
away.17
4. On October 7, 1991, Governor for Eastern Mindanao, Teodoro Palma Gil, who was
previously appointed as a Regional Trial Court (RTC) judge, recommended that Teodoro
Nano, Jr., President of the IBP Davao Oriental Chapter, be his replacement.18 On November
8, 1991, Nano was eventually elected by the IBP Board of Governors as Governor for Eastern
Mindanao.19
5. On September 26, 1998, the IBP "Board of Governors confirmed the designation of Teofilo S.
Pilando, Jr. as Governor for Northern Luzon, to serve the unexpired portion of the term of Gov.
Roy S. Pilando, who ran for public office."20
6. On September 12, 2002, the IBP Board of Governors "resolved to appoint acting Governor
Rogelio Velarde as regular Governor of Southern Luzon Region after learning of the death of
the regular Governor, Josefina S. Angara."21
7. On August 17, 2006, the IBP Board of Governors "appointed Abelardo C. Estrada as OIC for
IBP Northern Luzon [in lieu of] Silvestre H. Bello who was facing a disqualification case as
Governor of IBP Northern Luzon."22
In his Reply, Atty. Ubano questioned the IBP Board of Governors’ claim that it is not necessary
for a position to be absolutely vacant before a successor may be appointed or elected.
Citing the third paragraph of Section 44of the IBP By-Laws’ use of the word "vacancy" (i.e.,
"any vacancy in the office of Governor") and "resignation" (i.e., "resigned governor"), Atty.
Ubano claimed that the text of the By-Laws is "abundantly clear and unequivocal that there
must be first a "vacancy" or a prior resignation before the delegates of the Region can lawfully
elect a successor x x x."23
Atty. Ubano likewise challenged the precedents cited by the IBP Board of Governors and
claimed that no such tradition of appointing the successor of a resigned governor existed.24
He pointed out that prior to its amendment in March 2, 1993, the IBP By-Laws had allowed the
IBP Board of Governors to elect, and not appoint, "a successor ofa resigned Governor."25
However, the amended By-Laws now require that a successor be elected by the delegates of
the concerned region.26 Even if it were true that the IBP Board of Governors had a tradition of
appointing the successor of a resigned governor, the tradition cannot be validated in view of
the first paragraph of Article 7 of the Civil Code which reads:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.27
Meanwhile, on April 23, 2013, Atty. Ubano filed another Motion (Urgent Motion to
Defer/Restrain Performance of Duties as Successor Governor of IBP Northern Luzon Region)
seeking to prevent Atty. Chaguile from exercising the functions of IBP Governor for Northern
Luzon.
This Court also received on May 16, 2013 an undated Resolution purportedly signed by
delegates of the IBP Northern Luzon Region. The signatories called for an election on May 18,
2013 to name Atty. Habawel’s successor.
On May 20, 2013, these same signatories filed before this Court their Opposition to Atty.
Chaguile’s nomination. As with the second ground cited by Atty. Ubano in his Original Motion,
this Opposition was anchored on the third paragraph of Section 44 of the IBP By-Laws.
Also on May 20, 2013, Atty. Ubano filed a "Motion for Leave to File Reply with Very Urgent
Motion to Restrain Atty. Chaguile from Voting in the EVP Election on 22 May 2013."28 Attached
to the Motion was his "Reply with Very Urgent Motion to Restrain Atty. Chaguile from Voting in
the EVP Election on 22 May 2013."29 Atty. Ubano also sent a letter to Associate Justice
Mariano C. del Castillo "pray[ing] and beg[ging] the indulgence of the Honorable Court to
immediately restrain Atty. Lynda Chaguile from voting in the IBP [Executive Vice
President]Election to be held on 22 May2013."30
In a Resolution dated June 4, 2013, this Court required the IBP Board of Governors to file its
Comment on Atty. Ubano’s (1) Urgent Motion to Defer/Restrain Performance of Duties as
Successor Governor of IBP Northern Luzon Region; (2) Motion for Leave to File Reply; and (3)
Reply. It also required the IBP Board of Governors to comment on the Opposition filed by the
signatories purporting to be the delegates of the IBP Northern Luzon Region.
On July 8, 2013, the IBP Board of Governors filed a Compliance (i.e., Comment in
Compliance) with this Court’s June 4, 2013 Resolution.
With respect to Atty. Ubano’s Urgent Motion to Defer/Restrain Performance of Duties as
Successor Governor of IBP Northern Luzon Region, the IBP Board of Governors pointed out that
Atty. Chaguile’s term expired on June 30, 2013.31
As to the Opposition filed by signatories purporting to be the delegates of the IBP Northern
Luzon Region, the IBP Board of Governors alleged that the term of the House of Delegates of
Northern Luzon for 2011 to 2013 expired on March 31, 2013. As such, the Opposition signed by
the purported delegates was ultra vires, and therefore, null and void.32 The IBP Board of
Governors pointed out that "[t]he issue about the eligibility of Atty. Lynda Chaguile as
replacement Governor for Atty. Denis B. Habawel was traversed over in the Comment x x x
dated April 24, 2013."33
A.M. No. 13-05-08-SC
The second Administrative Matter assails the conduct of the May 22, 2013 election of the IBP
Executive Vice President (EVP). In this election, Atty. Vicente M. Joy as was elected IBP
Governor for Southern Luzon.
On May 31, 2013,Atty. Ubano filed an Urgent Omnibus Motion to (1) nullify the May 22, 2013
IBP Executive Vice President election and (2) restrain Atty. Vicente M. Joyas from discharging
the duties of EVP/Acting President. This Motion was docketed as A.M. No. 13-05-08-SC. In this
Court’s Resolution dated June 18, 2013, this Administrative Matter was consolidated with A.M.
No. 13-04-03-SC(the first Administrative Matter).
Atty. Ubano sought to nullify the May 22, 2013 election on two (2) grounds:
First, he claimed that the IBP election of the EVP was marred by inordinate haste, grave
irregularities, patent hostility, manifest bias and prejudice, as well as the presiding officer’s
absolute lack of independence.34
Second, he claimed that the election violated Section 47 of the IBP By-Laws which requires
that the EVP be elected by a vote of at least five (5) Governors. Atty. Ubano emphasized that
Atty. Chaguile’s vote in favor of Atty. Joyas was invalid, as Atty. Chaguile’s appointment as
governor was itself ultra vires, and therefore,void ab initio.
Section 47 of the IBP By-Laws, as amended pursuant to this Court’s Resolution dated April 11,
2013 in A.M. No. 09-5-2-SC and A.C. No. 8292, now reads:
Sec. 47. Election of National President Executive Vice President. –The Integrated Bar of the
Philippines shall have a President, an Executive Vice President, and nine (9) regional
Governors. The Governors shall be ex-officio Vice President for their respective regions.
The Board of Governors shall elect the President and Executive Vice President from among
themselves each by a vote of at least five (5) Governors. Upon expiration of the term of the
President, the Executive Vice-President shall automatically succeed as President.
In the Compliance that the IBP Board of Governors filed in A.M. No. 13-04-03-SC, it addressed
Atty. Ubano’s allegations as follows:
1. On the conduct of the election
a. The Report on the Conduct of Election filed by the Regional Trial Court - Pasig Executive
Judge (and Supreme Court Designated Observer)35 indicates that Atty. Ubano’s objection to
the appointment of the presiding officer was thoroughly discussed and properly put to a
vote.36 Further, there is no factual basis for claiming that the presiding officer was not
independent. Atty. Ubano was also noted to have been allowed the most number of
interventions and the longest time spent for deliberations.37
b. Atty. Ubano was properly ruled out of order when he moved that the elections be moved
to a later date and when he objected to the participation of Atty. Chaguile.38
2. On the supposed invalidity of Atty. Chaguile’s vote, the IBP Board of Governors pointed out
that, as of the time of the election, there was no basis for invalidating the vote.39
Stripped of technical maneuverings and legal histrionics, we are called to rule upon the
validity of Atty. Lynda Chaguile’s appointment as IBP Governor for Northern Luzon in lieu of
Atty. Denis B. Habawel. The resolution of this matter is decisive of the validity of her acts as IBP
Governor for Northern Luzon — including her participation in the election of the IBP EVP.
Likewise, we are asked to review the conduct of the election for the IBP EVP. We must
determine whether the election was attended by irregularities, biases, and prejudice that
would invalidate its results.
We note that certain issues raised in several Motions filed as part of the first Administrative
Matter have been rendered moot and academic.
In the first Administrative Matter, Atty. Ubano sought to (1) declare as ultra vires or as invalid
the portion of the IBP Board of Governors Omnibus Resolution dated March 21, 2013 which
approved the nomination of Atty. Chaguile as IBP Governor for Northern Luzon in lieu of Atty.
Denis Habawel and (2) restrain Atty. Chaguile from exercising the functions of IBP Governor for
Northern Luzon, among which was voting in the May 22, 2013 election for IBP EVP.Also in the
first Administrative Matter, several signatories purporting to be the delegates of the IBP
Northern Luzon Region opposed Atty. Chaguile’s nomination on substantially the same
grounds as Atty. Ubano.
As pointed out by the IBP Board of Governorsin its Compliance, "the term of Atty. Lynda
Chaguile as Governor for Northern Luzon expired on June 30, 2013."40 A new Governor for
Northern Luzon, Atty. Oliver Cachapero, was elected.41 As Atty. Chaguile is no longer serving
as IBP Governor for Northern Luzon, the matter of ousting or restraining Atty. Chaguile from
exercising the functions of such office is no longer an available relief.
As we have explained in Pormento v. Estrada:42
As a rule, this Court may only adjudicate actual, ongoing controversies. The Court is not
empowered to decide moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the result as to the thing in issue in the case before it. In other
words, when a case is moot, it becomes non-justiciable.
An action is considered "moot" when it no longer presents a justiciable controversy because
the issues involved have become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. There is nothing for the court to resolve as the
determination thereof has been overtaken by subsequent events.43
However, we recognize that the validity of Atty. Chaguile’s appointment as Governor for
Northern Luzon affects the validity of her actions as the occupant of thisoffice, especially her
participation in the IBP Board of Governors’ election of the IBP EVP, which is the subject of the
second Administrative Matter.
Atty. Ubano cited two grounds as bases for claiming that the IBP Board of Governors
improperly approved Atty. Chaguile’s succession as Governor for Northern Luzon. First, there
was no vacancy at the time of Atty. Chaguile’s designation. Atty. Habawel was then still
Governor for Northern Luzon, and there was no need to name a replacement yet. Second,
the IBP Board of Governors acted ultra vires or beyond its competence considering that the
third paragraph of Section 44 of the IBP By-Laws vests the right to elect the successor of a
resigned IBP governor inthe delegates of the concerned region and not in the IBP Board of
Governors.
On the first ground, we sustain the position of the IBP Board of Governors.
Indeed, it is not only erroneous but also absurd to insist that a vacancy must actually and
literally exist at the precise moment that a successor to an office is identified. Where a
vacancy is anticipated with reasonable certainty—as when a term is ending or the effectivity
of a resignation or a retirement is forthcoming—it is but reasonable that those who are in a
position to designate a replacement act promptly. New officials are elected before the end
of an incumbent’s term; replacements are recruited (and even trained) ahead of an
anticipated resignation or retirement. This is necessary to ensure the smooth and effective
functioning of an office. Between prompt and lackadaisical action, the former is preferable. It
is immaterial that there is an identified successor-in-waiting so long as there are no
simultaneous occupants of an office. On the second ground, the third paragraph of Section
44 of the IBP By-Laws clearly provides that "the delegates from the region shall by majority,
elect a successor from among the members of the Chapter to which the resigned governor is
a member." There is no ambiguity in this text. We are surprised that the IBP—an institution
expected to uphold the rule of law—has chosen to rely on "tradition" to validate its action. The
IBP Board of Governors arrogated unto itself a power which is vested in the delegates of the
concerned IBP region. This arrogation is a manifest violation of the clear and unmistakable
terms of the IBP’s By-Laws. We cannot countenance this. No amount of previous practice or
"tradition" can validate such a patently erroneous action. It is, therefore, lear that Atty.
Chaguile’s designation as IBP Governor for Northern Luzon is tainted with irregularity, and
therefore, invalid.
Nevertheless, following the adoption of the IBP Board of Governors Omnibus Resolution dated
March 21, 2013at the time Atty. Ubano filed the Original Motion and up until June 30, 2013
when her "term x x x expired,"44 Atty. Chaguile acted as and performed the functions of the
IBP Governor for Northern Luzon. This is an accomplished fact which no amount of legal
abstraction can undo. It is in this context, with the backdrop of this consummated truth,that
we rule on the Administrative Matters before us. Given these circumstances, we hold that
Atty. Chaguile took on the role of IBP Governor for Northern Luzon in a de facto capacity.
De facto means "in point of fact."45 To speak of something as being de factois,thus,to say that
it is "[a]ctual [or] existing in fact"46 as opposed to "[e]xisting by right or according to law,"47
that is, de jure. Being factual though not being founded on right or law, de facto is,therefore,
"illegitimate but in effect."48
The concept of a de facto officer was explained in Civil Service Commission v. Joson, Jr.:49
The broad definition of what constitutes an officer de facto was formulated by Lord Holt in
Parker v. Kent, and reiterated by Lord Ellenborough and full King’s Bench in 1865 in Rex v.
Bedford Level, "One who has the reputation of being the officer he assumes and yet is not a
good officer in point of law." A de facto officer is one who is in possession of the office and
discharging its duties under color of authority. By color of authority is meant that derived from
an election or appointment, however irregular or informal, so that the incumbent is not a
mere volunteer.50 (Emphasis and underscoring supplied)
A de facto officer is distinguished form a de jure officer, as follows:
The difference between the basis of the authority of a de jure officer and that of a de facto
officer is that one rests on right, the other on reputation. It may be likened to the difference
between character and reputation. One is the truth of a man, the other is what is thought of
him.51
Moreover, as against a mere usurper, "[i]t is the color of authority, not the color of title that
distinguishes an officer de facto from a usurper."52 Thus, a mere usurper is one "who takes
possession of [an] office and undertakes to act officially without any color of right or authority,
either actual or apparent."53 A usurper is no officer at all.54
The expanse of the de facto doctrine was established early in the development of our
jurisprudence. In Luna v. Rodriguez,55 the doctrine was established to contemplate situations
where the duties of the office were exercised: (a) Without a known appointment or election,
but under such circumstances of reputation or acquiescence as were calculated to induce
people, without inquiry, to submit to or invoke his action, supposing him to be the officer he
assumes to be; (b) under color of a known or valid appointment or election, where the officer
has failed to conform to some precedent requirement or condition, for example, a failure to
take the oath or give a bond, or similar defect; (c) 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; and (d)
under color of an election, or appointment, by or pursuant to a public unconstitutional law,
before the same is adjudged to be such.56 (Emphases and underscoring supplied)
This coverage, affirmed and reiterated in subsequent jurisprudence,57 unequivocally includes
officers whose election is void because the body that elected (or otherwise designated) them
lacked the capacity to do so. This is precisely the situation in this case: The power to elect an
IBP Governor is lodged in the delegates of the concerned region, not in the IBP Board of
Governors; yet the IBP Board of Governors approved Atty. Chaguile’s nomination as IBP
Governor for Northern Luzon.
To be a de facto officer, all of the following elements must be present:
1) There must be a de jure office;
2) There must be color of right orgeneral acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.58 (Underscoring
supplied)
In the present case, there is no dispute that a de jure office—that of IBP Governor for Northern
Luzon—exists.
Neither is there any dispute that Atty. Chaguile took possession of and performed the
functions of such office. In fact, the Motions submitted as part of the first Administrative Matter
were precisely intended to put a stop to her performance of these functions. Likewise, Atty.
Chaguile took possession of and performed the functions of the IBP Governor for Northern
Luzon through a process, albeit "irregular or informal, so that [she] is not a mere volunteer,"59
that is, not through her own actions but through those of the IBP Board of Governors. Thus, she
did so under "color of authority," as defined in settled jurisprudence (e.g., Civil Service
Commission v. Joson, Jr.,60 Dimaandal v. Commission on Audit,61 and Dennis A.B. Funa v.
Acting Secretary of Justice Alberto C. Agra 62).
The IBP Board of Governors’ approval was secured through a process that it characterized as
a "tradition," allowing it to appoint a replacement for an officer who vacates his or her office
shortly before his or her term expires. It cited seven (7) cases, spanning a period of more than
twenty-six (26) years, in which this tradition was exercised. Of these, three (3) occurred after
the March 2, 1993 amendment of the IBP By-Laws which requires that a successor governor be
elected by the delegates of the concerned region. Thus, the "tradition" persisted even after
the amended By-Laws had vested the power to elect a replacement in the delegates of the
concerned region.
Being in violation of the IBP By-Laws (as amended on March 2, 1993), this supposed tradition
cannot earn our imprimatur. Be that as it may, in all of the occasions cited by the IBP Board of
Governors, the authority of replacement governors was derived from a process, which,
though irregular, enabled them to act as and be accepted as governors. It was with this
backdrop that Atty. Chaguile herself was designated as IBP Governor for Northern Luzon.
Illumined by this context, thecolor of authority or right under which Atty. Chaguile became IBP
Governor for Northern Luzon is all the more stark.
This same color of authority or right negates any insinuation that Atty. Chaguile assumed
office out of her own design or contrivance; that is, that she did so in bad faith. She precisely
relied on established practice, now established as invalid but nevertheless historically
accepted. Atty. Ubano alleged that then IBP President Roan Libarios imposed upon the IBP
Board of Governors the approval of Atty. Chaguile’s nomination; that Atty. Habawel wrongly
participated in the vote to approve Atty. Chaguile’s nomination; and that the IBP Board of
Governors itself violated the IBP By-Laws. Yet, he failed to allege that Atty. Chaguile was her
self a party to any scheme or artifice that might have been designed so that she would be
able to secure the IBP Governorship for Northern Luzon. Furthermore, no evidence was
presented to show that there was coercion imposed on the other governors of the Integrated
Bar of the Philippines.
We note that on May 16, 2013,signatories claiming to be delegates of the IBP Northern Luzon
Region submitted to this Court a copy of an undated Resolution calling for an election to
name Atty. Denis B. Habawel’s successor as IBP Governor for Northern Luzon. We also note
that on May 20, 2013, the same individuals submitted their Opposition to Atty. Chaguile’s
nomination as Atty. Habawel’s replacement. On the basis of this, there appears to be a
ground for arguing that there was no "general acquiescence by the public"63 to Atty.
Chaguile’s having replaced Atty. Habawel.
The second requisite for being a de facto officer, as spelled out in Tuandav.
Sandiganbayan,64 reads: "There must be color of right or general acquiescence by the
public."65 Clearly, the requisite is stated in the alternative. Color of right also suffices. We have
already discussed how Atty. Chaguile took on the role of IBP Governor for Northern Luzon with
color of right (or authority).
We fail to see how the action of six(6) individuals66sustains the assertion that the public never
acquiesced to Atty. Chaguile’s having replaced Atty. Habawel. The requisite speaks of
"general acquiescence." To be "general" is not to be "absolute." It is to speak of a
commonality that exists for the most partbut not necessarily entirely. It admits of exceptions.
That there are those who count themselves as objectors merely attests to their existence. It
does not, in and of itself, repudiate that which may generally exist. Thus,to equate the action
of a handful ofactive objectors with the utter lack of "general acquiescence" would be non
sequitur.
Granting that these six(6) individuals are in fact the legitimate delegates of the IBP Northern
Luzon Region and even if we disregard their sheer number, they still fail to represent or
embody the "public." They are direct participants, having been the individuals whose right to
elect the IBP Governor for Northern Luzon was supposedly undermined. Precisely, their being
direct participants –meaning, persons whose supposed rights were violated –makes them
actual parties to the controversy. That they themselves chose to file an Opposition and submit
themselves to this Court’s adjudication of this case evidences their own acknowledgement of
this.
The de facto doctrine was devised to benefit the public. On the validity of actions made by
de facto officers, it is settled that "the acts of the de facto officer are just as valid for all
purposes as those of a de jure officer, in so far as the public or third persons who are interested
therein are concerned."67 This is premised on the reality that "[t]hird persons x x x cannot
always investigate the right of one assuming to hold an important office. They have aright to
assume that officials apparently qualified and in office are legally such."68
The third party affected by the nature of the assumption into office by Atty. Chaguile is the
mass of lawyers belonging to the Integrated Bar of the Philippines. Again, the whole legal
profession becomes witness to how the selection of its leaders has practically become annual
intramurals of both political and legal controversy. In our April 11, 2013 Resolution in A.M. No.
09-5-2-SC and A.C. No. 8292, we observed that this has brought about disenchantment within
the ranks of the Integrated Bar of the Philippines. In truth, many suspect that these elections
are contests between exclusive groups that maneuver to find allies year in and year out to
control the helm of this mandatory lawyers’ organization.
The disposition we give to this case is also partly to quiet these conflicts and to deny any
reward to further legal controversy. After all, in our April 11, 2013 Resolution in A.M. No. 09-5-2-
SC and A.C. No. 8292, we created a permanent Committee for IBP Affairs "to primarily attend
to the problems and needs of a very important professional body and to make
recommendation for its improvement and strengthening."69
Should that initiative still fail, this Court should seriously review the present modality of the
Integrated Bar. Instead of individual membership, a more functional alternative might be
organizational membership. This means that voluntary organizations such as the Free Legal
Assistance Group (FLAG), the Alternative Law Groups (ALG), the Philippine Bar Association
(PBA), the U.P. Women Lawyers’ Circle (WILOCI), and other organizations can coalesce and
nominate leaders to comprise a council. Thus, every lawyer will have a mature choice to
determine which of these organizations best represents his or her interests. This harmonizes
better with their right to free association.
All considered, the circumstances under which Atty. Chaguile’s nomination was approved
and under which Atty. Chaguile subsequently assumed the role of IBP Governor for Northern
Luzon are sufficient to induce a general belief that she was properly the IBP Governor for
Northern Luzon and that her actions in this office were properly invoked.
Having said these, we agree with a point raised by Atty. Ubano. As with statutes, the IBP By-
Laws’ "violation or non-observance [ought] not be excused by disuse, or custom, or practice
to the contrary."70 We do not validate the IBP Board of Governors’ erroneous practice. To
reiterate our earlier words: "We cannot countenance this. No amount of previous practice or
"tradition" can validate such a patently erroneous action."
Nonetheless, even as we decry the IBP Board of Governor’s reliance on "tradition," we do not
lose sight of the fact, palpable and immutable, that Atty. Chaguile has so acted as IBP
Governor for Northern Luzon. Thankfully, our legal system has an established means through
which we are able to avert the "chaos that would result from multiple and repetitious
[challenges to] every action taken by [an] official whose claim to office could be open to
question."71 It is strictly in view of this that we make a determination that Atty. Chaguile was
the de facto IBP Governor for Northern Luzon.We are not validating a wrong; we are merely
addressing an exigency.
Having established that Atty. Chaguile was the IBP Governor for Northern Luzon in a de facto
capacity, we turn to the validity of her actions as a de facto officer.
To reiterate, one that is de facto is "illegitimate but in effect."72 Thus, it is settled that "the acts
of the de facto officer are just as valid for all purposes as those of a de jure officer, in so far as
the public or third persons who are interested therein are concerned."73 This is necessary so as
to protect the sanctity of their dealings with those relying on their ostensible authority:"[t]hird
persons x x x cannot always investigate the right of one assuming to hold an important office.
They have a right to assume that officials apparently qualified and in office are legally
such."74
Accordingly, we hold that all official actions of Atty. Chaguile as de facto IBP Governor for
Northern Luzon must be deemed valid, binding, and effective, as though she were the officer
validly appointed and qualified for the office. It follows that her participation and vote in the
election for IBP EVP held on May 22, 2013 are in order.
We now proceed to the points raised by Atty. Ubano assailing the conduct of the May 22,
2013 election for the IBP EVP.
The Report on the Conduct of Election prepared by this Court’s designated observer,
Executive Judge Danilo S. Cruz, reveals that Atty. Ubano’s objections were properly and
thoroughly discussed. He was given a considerable length of time to air and argue his points.
It was only after thorough discussions that Atty. Ubano’s Motion to postpone the elections—
which he insisted on raising even when the body was in the process of nominating candidates
for the position of EVP—was declared out of order.75 Atty. Ubano himself was then nominated
for IBP EVP.76 He accepted his nomination subject to the resolution of his Motion for
Reconsideration in A.M. No. 09-5-2-SC and A.C. No. 8292, as well as the resolution of the first
Administrative Matter.77
Before the members of the IBP Board of Governors placed their votes, Atty. Ubano had sought
to have Atty. Chaguile’s ballot segregated and sealed pending the resolution of his Motion for
Reconsideration in A.M. No. 09-5-2-SC and A.C. No. 8292, as well as the resolution of the first
Administrative Matter. His Motion was denied.78 Votes were then cast, followed by tally and
canvassing. After the votes had been tallied, Atty. Vicente M. Joyas received five (5) votes
while Atty. Ubano received four(4) votes. The Certificate of Election was then prepared,
certified by the presiding officer and noted by this Court’s observer.79
Atty. Ubano was accorded more than an ample opportunity to arguehis position. More
importantly, his position was amply considered by the body. Another IBP governor, IBP Greater
Manila Governor Dominic C.M. Solis, even initially supported Atty. Ubano’s insistence that the
election be postponed, but Atty. Solis subsequently withdrew hissupport.80
In his Urgent Omnibus Motion which gave rise to the second Administrative Matter, Atty.
Ubano made an issue out of Atty. Vicente M. Joyas’ having designated IBP National Secretary
Nasser A. Marohomsalic as Chairman of the Commission on Elections considering that
Atty.Joyas supposedly lacked the authority to do so. Atty. Ubano made much of Atty. Joyas’
status as IBP Governor for Southern Luzon. Atty. Ubano, however, lost sight of the fact that
Atty. Joyas was likewise the Chairman of the IBP Executive Committee.
The Report on the Conduct of Election prepared by Executive Judge Danilo S. Cruz recalls the
pertinent events as follows:
The election was scheduled at 11 A.M. Chairman Joyas called the meeting to order at11:05
A.M. National Secretary Marohomsalic certified that all members of the Board were notified of
the election schedule and that with the presence of five (5) members of the Board,81 there
was a quorum. The Chairman placed on record that the undersigned Court Observer was in
attendance.
Chairman Joyas said the meeting was for the purpose of electing the EVP for 2011-2013 and
designated the COMELEC for the election, thus: Secretary Marohomsalic as Chairman, Atty.
Rosario T. Setlas-Reyes, as second member, and IBP Head Executive Assistant Aurora G.
Geronimo as third member and recorder of the proceedings. Chairman Joyas then
relinquished the Chair to COMELEC Chairman Nasser A. Marohomsalic.82
Atty. Ubano’s own description of the circumstances leading to the creation of the Executive
Committee states:
In light of the impending ipso facto resignation of Pres. Libarios on 30 March 2013 which is the
start of the official campaign period, the IBP [Board of Governors]discussed a mechanism to
prevent hiatus [sic]in the leadership of the IBP. After debate and deliberation, it was agreed
to constitute a five (5)[-] member Executive Committee ("Ex Com") tasked to temporarily
administer the affairs of the IBP x x x.83
From Atty. Ubano’s description of the Executive Committee’s function, it is evident that its
principal purpose is to ensure that the functions of the IBP National President shall continue to
be performed despite IBP National President Roan Libarios’ resignation. Conformably with the
Omnibus Resolution creating the Executive Committee, Atty. Vicente M. Joyas was
designated as the Executive Committee Chairman. It is pursuant to this designation and the
Executive Committee’s general function that Atty. Joyas designated the Commission on
Elections for the election of the IBP EVP.
Further, Section 50 (d) of the IBP By-Laws provides:
(d) Secretary: The Secretary shall attend all meetings of the Board of Governors, and keep a
record of all the proceedings thereof; prepare and maintain a register of all members of the
Integrated Bar; notify national officers as well as members of national committees of their
election or appointment; cause to be prepared the necessary official ballots for the election
of Governors; and perform such other duties as are assigned to him by these By-Laws, by the Let a copy of this Resolution be given to the Supreme Court Oversight Committee on the
President and by the Board of Governors.(Underscoring supplied) Integrated Bar of the Philippines reorganized by virtue of Memorandum Order No. 20-2013 on
June 13, 2013 for its proper advice.
As IBP National Secretary, Atty. Marohomsalic may, therefore, properly perform such other
duties assigned to him by the IBP National President. Thus, Atty. Vicente M. Joyas, acting for SO ORDERED.
the IBP Executive Committee(in his capacity as its Chairman) and pursuant to the Executive
Committee’s purpose of ensuring that the functions of the IBP National President shall
continue to be performed, was in a position to designate the IBP National Secretary to
perform a duty other than those explicitly articulated in the IBP By-Laws. As regards this case,
that duty was to be the duty of the Chairman of the Commission on Elections. In turn, it was in
his capacity as Commission on Elections Chairman that Atty. Marohomsalic presided over the
conduct of the election.

In sum, we fail to see how the election could have been tainted with the presiding officer’s
absolute lack of independence, manifest bias and prejudice, patent hostility, and inordinate
haste.84 We find no reason to invalidate the election.

The Integrated Bar of the Philippines has long been beset by leadership crises.1âwphi1 Our
April 11, 2013 Resolution in A.M. No. 09-5-2-SC and A.C. No. 8292—the same cases from which
the subject matter of this Resolution arose—chronicled the long, acrimonious history of the
leadership of the Integrated Bar of the Philippines. It is, at the very least, strange that the
Integrated Bar has suffered these episodes while other lawyers’ organizations have not. Again,
it is worth while to consider if there are other means of integrating the members of the Bar—
alternative ways that might enable the Integrated Bar to satisfy its objectives more effectively,
democratize its leadership, and minimize its need to seek the intervention of this Court.

The leadership of our Integrated Bar must find a better way of resolving its conflicts other than
elevating these matters to this Court. It cannot fail to show maturity in resolving its own
conflicts. It behooves the members of the legal profession to avoid being solitigious that they
lose sightof the primordial public interests that must be upheld in every case and conflict that
is raised to the level of this Court.

Otherwise, the Integrated Bar of the Philippines will continue to alienate its mass membership
through political contestations that may be viewed as parochial intramurals from which only a
few lawyers benefit. It will be generations of leaders who model needless litigation and
wasted time and energy. This is not what an integrated bar of a noble profession should
be.1âwphi1

WHEREFORE, the Motion to Declare dated March 27, 2013 as Ultra Vires or Invalid the Urgent
Motion to Defer/Restrain Performance of Duties as Successor Governor of IBP Northern Luzon
Regiondated April 22, 2013and the Very Urgent Motion to Restrain Atty. Chaguile from Voting
in the EVP Election on May22, 2013 dated May 20, 2013filed by Atty. Marlou B. Ubano are
DENIED for being moot and academic.

We DECLARE that Atty. Lynda Chaguilewas indeed a de factoofficer during her tenure as IBP
Governor for Northern Luzon and that her acts as de factoofficer—includingher having voted
in the May 22, 2013 electionfor the Executive Vice President of the Integrated Bar of the
Philippines—are valid, binding,and effective. The Urgent Omnibus Motion to (1) Nullify the EVP
Election on May 22, 2013 and (2) Restrain Gov. Vicente M. Joyas of Southern Luzon Region
from Discharging the Duties of EVP/Acting President until the Final Resolution of the Issues is
DENIED.
[De Jure and De Facto Officers]
G.R. No. 110544 October 17, 1995
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO
FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the
Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A.
VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE
SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.
KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the
Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February
1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled
"People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for
suspension of their arraignment.
The present controversy arose from the following antecedents:
On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were
designated as industrial labor sectoral representative and agricultural labor sectoral
representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros
Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private
respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17
February 1989, respectively.
Subsequently, petitioners filed an undated petition with the Office of the President for review
and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied
the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as
sectoral representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial
Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition
as members of the Sangguniang Bayan. It was dismissed on 23 July 1991.
Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of
Dumaguete City to declare null and void the designations of private respondents as sectoral
representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus
Secretary of the Department of Local Government, et al."
On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal
Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging
petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses
REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO,
ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA
of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows:
That during the period from February 1989 to February 1991 and subsequent thereto, in the
Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court,
accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G.
FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and
SANTOS A. VILLANUEVA while in the performance of their official functions and taking
advantage of their public positions, with evident bad faith, manifest partiality, and conspiring
and confederating with each other did, then and there, wilfully and unlawfully cause undue
injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay
despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS
(P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00)
representing respectively their per diems, salaries and other privileges and benefits, and such
undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan
and Delia Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the
proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil
Case No. 9955 pending before the Regional Trial Court of Dumaguete City.2
On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab
initio the designations issued by the Department of Local Government to the private
respondents as sectoral representatives for having been done in violation of Section 146 (2) of
B.P. Blg. 337, otherwise known as the Local Government Code.3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No.
84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792,
87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department
of Local Government) may appoint members of the local legislative bodies to represent the
Industrial and Agricultural Labor Sectors, there must be a determination to be made by the
Sanggunian itself that the said sectors are of sufficient number in the city or municipality to
warrant representation after consultation with associations and persons belonging to the
sector concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules and Regulations of the Local Government Code even
prescribe the time and manner by which such determination is to be conducted by the
Sanggunian.
Consequently, in cases where the Sanggunian concerned has not yet determined that the
Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient
number to warrant representation, there will absolutely be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector concerned to
warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with
associations and persons belonging to the sector concerned. Consultation with the sector
concerned is made a pre-requisite. This is so considering that those who belong to the said
sector are the ones primarily interested in being represented in the Sanggunian. In the same
aforecited case, the Supreme Court considers such prior determination by the Sanggunian
itself (not by any other person or body) as a condition sine qua non to a valid appointment or
designation.
Since in the present case, there was total absence of the required prior determination by the
Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of
private defendants as sectoral representatives null and void.
This verdict is not without precedence. In several similar cases, the Supreme Court invariably
nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not
complied with. Just to cite one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of Valenzuela that the sectors
concerned are of sufficient number to warrant representation and there was no consultation
whatsoever with the associations and persons belonging to the Industrial and Agricultural
Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and
Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No.
86394, August 24, 1990).4
Private respondents appealed the aforestated decision to the Court of Appeals, docketed as
CA-G.R. CV No. 36769, where the same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the
motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it
appears, nevertheless, that the private complainants have been rendering services on the
basis of their respective appointments as sectoral members of the Sangguniang Bayan of the
Municipality of Jimalalud, Negros Oriental; and that their said appointments enjoy the
presumption of regularity. Having rendered such services, the private complainants are
entitled to the salaries attached to their office. Even assuming arguendo that the said
Regional Trial Court shall later decide that the said appointments of the private complainants
are null and void, still the private complainants are entitled to their salaries and compensation
for service they have actually rendered, for the reason that before such judicial declaration of
nullity, the private complainants are considered at least de facto public officers acting as
such on the basis of apparently valid appointments issued by competent authorities. In other
words, regardless of the decision that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the services they
have actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence,
the decision that may be rendered by the Regional Trial Court in Civil Case No. 9955 would
not be determinative of the innocence or guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial
Question filed by the accused through counsel, is hereby DENIED for lack of merit.
SO ORDERED.5
Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the
decision promulgated by the trial court nullifying the appointments of private respondents but
it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992
on the justification that the grounds stated in the said motion were a mere rehash of
petitioners' original motion to hold the case in abeyance.6 The dispositive portion of its order
reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled
today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto,
Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby
ordered to show cause in writing within ten (10) days from service hereof why they should not
be cited for contempt of court for their failure to appear in court today for arraignment.
In case of an adverse resolution on the motion to quash which is to be filed by the counsel for
the defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all
dates the trial to start at 8:30 o'clock in the morning.
SO ORDERED.7
On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all
incidents pending the issuance of an extended resolution.8
No such resolution, however, was issued and in its assailed order dated 13 May 1992,
respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive
portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing today
which We deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial
on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in
the morning.
Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering
that the accused come all the way from Himalalud, Negros Oriental, no postponement will be
allowed.
SO ORDERED.9
Hence, this special civil action for certiorari and prohibition where petitioners attribute to
respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions
for the suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a
prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the
proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the
validity of the appointments of private respondents and their entitlement to compensation
which is already pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of discretion and/or acted without or in
excess of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative
theories that private respondents are de jure and/or de facto officers in violation of
petitioners' right to due process.10
In sum, the only issue in the case at bench is whether or not the legality or validity of private
respondents' designation as sectoral representatives which is pending resolution in CA-G.R.
No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case
against petitioners.
A prejudicial question is one that must be decided before any criminal prosecution may be
instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point
is vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial
question is a logical antecedent of the issues involved in said criminal case.11
A prejudicial question is defined as that which arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which pertains to
another tribunal. The prejudicial question must be determinative of the case before the court
but the jurisdiction to try and resolve the question must be lodged in another court or
tribunal.12 It is a question based on a fact distinct and separate from "the crime but so
intimately connected with it that it determines the guilt or innocence of the accused, and for
it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that
in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the
accused would necessarily be determined. It comes into play generally in a situation where a
civil action and a criminal action are both pending and there exists in the former an issue
which must be preemptively resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be determinative juris et de jure
of the guilt or innocence of the accused in the criminal case."13
The rationale behind the principle of prejudicial question is to avoid two conflicting
decisions.14 It has two essential elements:
(a) the civil action involves an issue similar or intimately related to the issue raised in the
criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may proceed.15
Applying the foregoing principles to the case at bench, we find that the issue in the civil case,
CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the
arraignment and further proceedings in the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably present in this case.
There is no doubt that the facts and issues involved in the civil action (No. 36769) and the
criminal case (No. 16936) are closely related. The filing of the criminal case was premised on
petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries
and per diems as sectoral representatives, while the civil action was instituted precisely to
resolve whether or not the designations of private respondents as sectoral representatives
were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if there will still be any
reason to proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019,
sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partiality, to pay private
respondents' salaries as sectoral representatives. This refusal, however, was anchored on
petitioners' assertion that said designations were made in violation of the Local Government
Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals
uphold the trial court's decision declaring null and void private respondents' designations as
sectoral representatives for failure to comply with the provisions of the Local Government
Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak,
have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being
in the first place no obligation on their part to pay private respondents' claims. Private
respondents do not have any legal right to demand salaries, per diems and other benefits. In
other words, the Court of Appeals' resolution of the issues raised in the civil action will
ultimately determine whether or not there is basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they are entitled to
compensation for actual services rendered.16 We disagree. As found by the trial court and as
borne out by the records, from the start, private respondents' designations as sectoral
representatives have been challenged by petitioners. They began with a petition filed with
the Office of the President copies of which were received by private respondents on 26
February 1989, barely eight (8) days after they took their oath of office.17 Hence, private
respondents' claim that they have actually rendered services as sectoral representatives has
not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that
private respondents' designations are finally declared invalid, they may still be considered de
facto public officers entitled to compensation for services actually rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.18
One can qualify as a de facto officer only if all the aforestated elements are present. There
can be no de facto officer where there is no de jure office, although there may be a de facto
officer in a de jure office.19
WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13
May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE.
Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of
petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769.
[De Jure and De Facto Officers]
G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
Ledesma, Saludo & Associates for petitioner.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of
General Manager of the Philippine Tourism Authority from which he claims to have been
removed without just cause in violation of his security of tenure.
The petitioner bases his claim on the following communication addressed to him by the
Minister of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism Authority, effective
immediately.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same date.
On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition
of the Board of Directors of the PTA, which included Binamira as Vice-Chairman in his
capacity as General Manager. This approval was given by the President on the same date. 1
Binamira claims that since assuming office, he had discharged the duties of PTA General
Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such
by various government offices, including the Office of the President.
He complains, though, that on January 2, 1990, his resignation was demanded by respondent
Garrucho as the new Secretary of Tourism. Binamira's demurrer led to an unpleasant
exchange that led to his filing of a complaint against the Secretary with the Commission on
Human Rights. But that is another matter that does not concern us here.
What does is that on January 4, 1990, President Aquino sent respondent Garrucho the
following memorandum, 2 copy furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have submitted to this Office that the present General
Manager of the Philippine Tourism Authority was designated not by the President, as required
by P.D. No. 564, as amended, but only by the Secretary of Tourism, such designation is invalid.
Accordingly, you are hereby designated concurrently as General Manager, effective
immediately, until I can appoint a person to serve in the said office in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA in accordance with this
memorandum, the petitioner filed this action against him to question his title. Subsequently,
while his original petition was pending, Binamira filed a supplemental petition alleging that on
April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General
Manager of the Philippine Tourism Authority. Capistrano was impleaded as additional
respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:
SECTION 23-A. General Manager-Appointment and Tenure. — The General Manager shall be
appointed by the President of the Philippines and shall serve for a term of six (6) years unless
sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as
such until his successor shall have been appointed and qualified. (As amended by P.D. 1400)
It is not disputed that the petitioner was not appointed by the President of the Philippines but
only designated by the Minister of Tourism. There is a clear distinction between appointment
and designation that the petitioner has failed to consider.
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. 3 When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, 4 as
where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of
Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of
the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the
Senate or the House of Representatives. 5 It is said that appointment is essentially executive
while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding
of the term. However, where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced
at will by the appointing authority. In this sense, the designation is considered only an acting
or temporary appointment, which does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed. The reason is that the decree clearly
provides that the appointment of the General Manager of the Philippine Tourism Authority
shall be made by the President of the Philippines, not by any other officer. Appointment
involves the exercise of discretion, which because of its nature cannot be delegated. Legally
speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion as
an alter ego of the President. The appointment (or designation) of the petitioner was not a
merely mechanical or ministerial act that could be validly performed by a subordinate even if
he happened as in this case to be a member of the Cabinet.
the President herself, through the memorandum she addressed to Secretary Garrucho on
January 4, 1990.
With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground.
His designation being an unlawful encroachment on a presidential prerogative, he did not
acquire valid title thereunder to the position in question. Even if it be assumed that it could be
and was authorized, the designation signified merely a temporary or acting appointment that
could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason).i•t•c-
aüsl In either case, the petitioner's claim of security of tenure must be rejected.

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption
being that he was chosen because he was deemed fit and competent to exercise that
judgment and discretion, and unless the power to substitute another in his place has been
given to him, he cannot delegate his duties to another. 6
In those cases in which the proper execution of the office requires, on the part of the officer,
the exercise of judgment or discretion, the presumption is that he was chosen because he
was deemed fit and competent to exercise that judgment and discretion, and, unless power
to substitute another in his place has been given to him, he cannot delegate his duties to
another. 7
The Court sympathizes with the petitioner, who apparently believed in good faith that he was
being extended a permanent appointment by the Minister of Tourism. After all, Minister
Gonzales had the ostensible authority to do so at the time the designation was made. This
belief seemed strengthened when President Aquino later approved the composition of the
PTA Board of Directors where the petitioner was designated Vice-Chairman because of his
position as General Manager of the PTA. However, such circumstances fall short of the
categorical appointment required to be made by the President herself, and not the Minister
of Tourism, under Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never
acquired valid title to the disputed position and so has no right to be reinstated as General
Manager of the Philippine Tourism Authority.

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

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

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

The argument that the designation made by Minister Gonzales was approved by President
Aquino through her approval of the composition of the Board of Directors of the PTA is not
persuasive. It must be remembered that Binamira was included therein as Vice- Chairman
only because of his designation as PTA General Manager by Minister Gonzales. Such
designation being merely provisional, it could be recalled at will, as in fact it was recalled by
[De Jure and De Facto Officers] The declaration of petitioner’s witnesses that they know petitioner to be "an actual and
physical resident of Brgy. Tugas since 2008" contradicts their statements that (1) they have
G.R. No. 193314 June 25, 2013 "started the construction of the residential house of the owner and other infrastructures of the
resort since January 2009"; (2) "until the present (meaning until December 2009 when they
SVETLANA P. JALOSJOS, Petitioner, executed their affidavit), the construction and development projects are still on-going"; and
vs. (3) "at times when Ms. Jalosjos is in Baliangao, she used to stay in the house of Mrs. Lourdes
COMMISSION ON ELECTIONS, EDWIN ELIM TUPAG and RODOLFO Y. ESTRELLADA. Respondents. Yap at Sitio Balas Diut, Brgy. Punta Miray, Baliangao, Misamis Occidental, while her residential
house was still being constructed."
RESOLUTION
Petitioner asserts that there are no inconsistencies in the statements of her witnesses, and that
SERENO, CJ.: the statements are in fact consistent with her claim that she had been residing in Baliangao,
Misamis Occidental for at least one year prior to the 10 May 2010 elections. She argues as
This Resolution resolves the Motion for Partial Reconsideration dated 8 March 2013, filed by follows:
Edwin Elim Tumpag and Rodolfo Y. Estrellada (private respondents) and the Motion for
Reconsideration dated 27 March 2013, filed by Svetlana P. Jalosjos (petitioner) in connection x x x the fact that some of these witnesses knew that petitioner lived in the house of Mrs.
with the Decision of the Court promulgated on 26 February 2013. Lourdes Yap in a different barangay, particularly Brgy. Punta Miray, is not at all inconsistent or
contradictory with petitioner’s assertion and the witnesses’ statements that petitioner resides in
Private respondents come before this Court on the sole issue of who between the vice-mayor Brgy. Tugas, because petitioner obviously needed a place to stay while her residence in Brgy.
and the second placer shall assume office pursuant to the final determination of petitioner's Tugas was being constructed. This does not negate the fact that petitioner was establishing
ineligibility to run for office and the lifting of the 07 September 20 1 0 Status Quo Order. her residence in Brgy. Tugas since the latter part of 2008, or at the very latest during the first
few months (sic) of January 2009.1
Petitioner, on the other hand, questions the Decision, by raising the following arguments:
Her assertion that she "was establishing her residence in Brgy. Tugas since the latter part of
1. This Court erred in concluding that there are inconsistencies in the Joint Affidavit of the 2008, or at the very latest during the first few months [sic] of January 2009" shows that she
witnesses presented by petitioner. herself cannot pinpoint the particular date when she established her legal residence in Brgy.
Tugas. This fact is contradictory to the declaration of the witnesses that "we have personal
2. Petitioner’s stay in Brgy. Punta Miray should be considered in determining the one-year knowledge that Ms. Svetlana P. Jalosjos has been an actual and physical resident of Sunrise
residency requirement in the same municipality. Tugas, Baliangao, Misamis Occidental, after she bought the properties thereat from the Heirs
of Agapita Yap, Jr. on 9 December 2008."
3. Petitioner’s registration as a voter presupposes she has stayed in the municipality at least six
months prior to the registration. To be an actual and physical resident of a locality, one must have a dwelling place where
one resides no matter how modest and regardless of ownership. The mere purchase of a
4. Petitioner’s certificate of candidacy (COC) should not be cancelled, absent any finding of
parcel of land does not make it one’s residence. The fact that the residential structure where
a deliberate attempt to deceive the electorate.
petitioner intends to reside was still under construction on the lot she purchased means that
she has not yet established actual and physical residence in the barangay, contrary to the
5. COMELEC was ousted of its jurisdiction to decide on the question of the qualification of
declaration of her witnesses that she has been an actual and physical resident of Brgy. Tugas
petitioner after she was proclaimed as winner.
since 2008.

We deny the motion of petitioner and grant the partial motion for reconsideration of private
Petitioner wants this Court to believe that the ongoing construction referred to by her
respondents.
witnesses in their joint affidavit does not refer to the residential structure, but to the other
structures in the resort that petitioner was then establishing. She does not assert, however, that
The claim of actual and physical residence in Brgy. Tugas since 2008 is contradicted by the
her residential unit had already been completed by that time. In fact, she has failed to
statements that petitioner was staying in Mrs. Lourdes Yap’s house while her residential unit
present any proof as to when her claimed residential unit was completed, or when she
was being constructed; and that by December 2009, the construction was still ongoing.
transferred to the unit.

Petitioner questions the inconsistencies noted by the court in the affidavit of her witnesses
It must be pointed out that the second statement in paragraph 1 of the Joint Affidavit states:
who, while claiming that they personally know her to have been an actual and physical
"We have started the construction of the residential house of the owner and the other
resident of Brgy. Tugas since 2008, declared in the same affidavit that while her house was
infrastructures of the resort since January, 2009." This was immediately followed by paragraph
being constructed, she used to stay at the residence of Mrs. Lourdes Yap (Mrs. Yap) in Brgy.
2 which reads:
Punta Miray.
2. Until the present, the construction and development projects are still ongoing. To establish
the fact of the on-going construction work, we are attaching herewith as part hereof, pictures
we have taken on December 20 and 29, 2009 marked Annexes "1", "2", "3", "4", "5", and "6"
hereof, respectively.2
Without any qualification as to what is being referred to by the construction and
development projects in paragraph 2, it follows that it refers to the "construction of the
residential house of the owner and the other infrastructures of the resort" found in the prior
statement.
In the affidavit, there is no mention whatsoever of completion of the residential house as of 30
December 2009. Neither has any occupancy permit been presented by petitioner to
definitely establish the date she started occupying what she claims to be her residential unit in
the resort.
Petitioner takes pains to present photographs of other structures in the resort, but fails to
present any photograph of a completed residential structure, which is more relevant in
proving her claimed residence in Brgy. Tugas. If the residential unit was already completed by
December 2009, her witnesses could have easily testified to that fact and presented
photographs of the structure.
This absence of any photograph proving the alleged residence of petitioner in the resort
bolsters the court’s conclusion that at the time the witnesses signed their affidavits in
December 2009, or six months prior to the May 2010 elections, her residential unit had not yet
been built.
A temporary stay in a stranger’s house cannot amount to residence.
Petitioner wants this Court to credit her stay in Mrs. Yap’s house as proof that she had been a
resident of the Municipality of Baliangao for more than one year prior to the 10 May 2010
elections. In her words:
7. More importantly, if this Honorable Court would consider the circumstance that petitioner
was staying in Brgy. Punta Miray as true so as to render the statements of her witnesses
inconsistent, then such a consideration should not have led this Honorable Court to the
conclusion that petitioner was not a resident of Baliangao, Misamis Occidental since Brgy.
Punta Miray is located in the municipality of Baliangao like Brgy. Tugas. In other words, the
fact that petitioner was staying in a house in Brgy. Punta Miray while her residence in Brgy.
Tugas was being constructed during the early part of 2009 would STILL LEAD to the conclusion
that petitioner has been residing in Baliangao, Misamis Occidental for at least one (1) year
prior to the 10 May 2010 elections since Brgy. Punta Miray is a part of Baliangao. 3 (Emphasis in
the original and underscoring omitted)
Petitioner relies on Mitra v. COMELEC4 and Sabili v. COMELEC5 in claiming that "the series of
events whereby petitioner first had her residence constructed ... after she purchased in 2008
the property where her residence was eventually established, and while she lived in another
barangay of the same municipality, and then eventually moved in to her residence in Brgy.
Tugas amounted to an ‘incremental process’ of transferring residence."
Petitioner’s case must be differentiated from Mitra in that petitioner therein presented not only
the notarized lease contract over the property where he claimed to be residing, but also "a
residence certificate ... and an identification card of the House of Representatives showing
Aborlan as his residence."6
In Sabili, the Court declared that "the existence of a house and lot apparently owned by
petitioner’s common-law wife, with whom he has been living for over two decades, makes
plausible petitioner’s allegation of bodily presence and intent to reside in the area."7
Petitioner’s stay in the house of Mrs. Yap in Brgy. Punta Miray, on the other hand, was only a
temporary and intermittent stay that does not amount to residence. It was never the intention
of petitioner to reside in that barangay, as she only stayed there at times when she was in
Baliangao while her house was being constructed.8 Her temporary stay in Brgy. Punta Miray
cannot be counted as residence in Baliangao.
Petitioner failed to show by what right she stayed in Mrs. Yap’s house. Except for the
declarations of her witnesses that she stayed there while her residential unit in the resort was
being built, she presented no other evidence to show any basis of her right to stay in that
particular house as a resident.
Approval of voter registration does not presuppose six-month residency in the place prior to
registration.
It appears on record that petitioner, in filing her application for registration as a voter on 7
May 2009, claimed "that she has been a resident of Brgy. Tugas, Baliangao, Misamis
Occidental for six (6) months prior to the filing of the said registration."9 For her claim to be true,
she must have resided in Brgy. Tugas on or before 8 November 2008. The records, however,
show that she purchased property in Brgy. Tugas only on December 2008. Thus, her claim that
she had been a resident of Brgy. Tugas for at least six (6) months prior to her application for
registration as a voter on 7 May 2009 is an utter falsity.
The approval of the registration of petitioner as a voter does not and cannot carry with it an
affirmation of the falsehood and misrepresentation as to the period of her residence in Brgy.
Tugas. At best, the approval of her registration as a voter carries a presumption that the
registrant will be able to meet the six-month residency requirement for the elections in which
the registrant intends to vote.10 It does not prove that the registrant has resided in the locality
for more than one year prior to the elections.
Representation that one is qualified to run for public office when proven false constitutes a
deliberate attempt to deceive the electorate.
Petitioner contends that the Court erred in upholding the cancellation of her COC despite the
glaring absence of any finding made by the respondent COMELEC in its assailed Resolution
that petitioner committed a false material representation in said COC.
The finding of the COMELEC that petitioner lacks the one year residency requirement to run
for local elective position in the municipality of Baliangao directly contradicts her sworn
declaration that she is eligible to run for public office. The fact that petitioner failed to prove
that she has been a resident of the locality for at least one year prior to the elections reveals
the falsity of her assertion in her COC that she is qualified to run for a local elective position.
This false material representation justifies the cancellation of her COC.
When the candidate’s claim of eligibility is proven false, as when the candidate failed to
substantiate meeting the required residency in the locality, the representation of eligibility in
the COC constitutes a "deliberate attempt to mislead, misinform, or hide the fact"11 of
ineligibility.
COMELEC is not ousted of jurisdiction to decide a petition for cancellation of the certificate of
candidacy after the winner is proclaimed.
The COMELEC, in its Resolution dated 19 August 2010, citing Aquino v. COMELEC,12 has amply
discussed this matter, thus:
Petitioner’s contention that "after the conduct of the election and (petitioner) has been
established the winner of the electoral exercise from the moment of election, the COMELEC is
automatically divested of authority to pass upon the question of qualification" finds no basis in
law, because even after the elections the COMELEC is empowered by Section 6 (in relation to
Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of
candidates. Section 6 states:
Decisions of this Court holding that the second-placer cannot be proclaimed winner if the
first-placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first placer was valid at the time of filing but subsequently had
to be cancelled because of a violation of law that took place, or a legal impediment that
took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is
void ab initio, then legally the person who filed such void certificate of candidacy was never
a candidate in the elections at any time. All votes for such non-candidate are stray votes and
should not be counted. Thus, such non-candidate can never be a first-placer in the elections.
If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the
election, prevailing jurisprudence holds that all votes for that candidate are stray votes. If a
certificate of candidacy void ab initio is cancelled one day or more after the elections, all
votes for such candidate should also be stray votes because the certificate of candidacy is
void from the very beginning.17 x x x. (Citations omitted)
There is another more compelling reason why the eligible candidate who garnered the
highest number of votes must assume the office. The ineligible candidate who was
proclaimed and who already assumed office is a de facto officer by virtue of the ineligibility.

SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final The rule on succession in Section 44 of the Local Government Code18 cannot apply in
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be instances when a de facto officer is ousted from office and the de jure officer takes over. The
counted. If for any reason a candidate is not declared by final judgment before an election ouster of a de facto officer cannot create a permanent vacancy as contemplated in the
to be disqualified and he is voted for and receives the winning number of votes in such Local Government Code. There is no vacancy to speak of as the de jure officer, the rightful
election, the Court or Commission shall continue with the trial and hearing of the action, winner in the elections, has the legal right to assume the position.
inquiry or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the WHEREFORE, in view of the foregoing, the Motion for Partial Reconsideration dated 08 March
evidence of guilt is strong. 2013 is hereby GRANTED. Petitioner's Motion for Reconsideration dated 27 March 2013 is
hereby DENIED with FINALITY. AGNE V. YAP, SR. is hereby declared the duly elected Mayor of
Under the above-quoted provision, not only is a disqualification case against a candidate the Municipality of Baliangao, Misamis Occidental in the 10 May 2010 elections. This resolution
allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but is immediately executory.
his obtaining the highest number of votes will not result in the suspension or termination of the
proceedings against him when the evidence of guilt is strong. While the phrase "when the
evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election Code,
Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B.P. 881. Section 7 states:

SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy.1âwphi1 –

The procedure hereinabove provided shall apply to petition to deny due course to or cancel
a certificate of candidacy based on Sec. 78 of Batas Pambansa 881.13

The cancellation of the certificate of candidacy of an ineligible candidate who has assumed
office renders the officer a de facto officer.

This Court has ruled in Aratea v. COMELEC14 and Jalosjos, Jr. v. COMELEC15 that the
cancellation of the COC based on an ineligibility that existed at the time of its filing means
that the candidate was never a valid candidate from the very beginning.16

On the question of who should assume the post vacated by the ineligible candidate, this
Court amply explained in Jalosjos, Jr. that:
[De Jure and De Facto Officers]
G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner,
vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.
E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.
Sycip, Salazar, Luna and Associates for respondents.
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September
15, 1961, his certificate of candidacy as representative of the first district of Rizal in the
forthcoming elections was filed with the Commission on Elections. Three days later, or on
September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The
Commission on Elections, per resolution,1 approved the withdrawal. But on September 21,
1961, respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as
municipal mayor on the theory that petitioner had forfeited the said office upon his filing of
the certificate of candidacy in question.
Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by
petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal,
after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario
became municipal mayor upon his having assumed office as such on September 21, 1961; (c)
petitioner must reimburse, as actual damages, the salaries to which respondent was entitled
as Mayor from September 21, 1961 up to the time he can reassume said office; and (d)
petitioner must pay respondent P1,000.00 as moral damages.1äwphï1.ñët
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except
for the award of moral damages which was eliminated. The same Court reaffirmed its stand
upon petitioner's filing a motion to reconsider. Hence, this petition for certiorari to review the
ruling of the Court of Appeals.
Petitioner first argues that both the lower court and the Court of Appeals had done what they
had no jurisdiction to do — review a resolution of the Commission on Elections. The submission
is without merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative questions affecting
elections, including the determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials x x x . 2 (Emphasis supplied)
And the decisions, orders and rulings of the Commission on these administrative questions are
reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to
matters connected with the "conduct of elections," necessarily its adjudicatory or quasi-
judicial powers are likewise limited to controversies connected with the "conduct of elections."
This phrase covers all the administrative process of preparing and operating the election
machinery so that the people could exercise their right to vote at the given time.4 All
questions and controversies that may arise therefrom are to be resolved exclusively by the
Commission, subject to review only by the Supreme Court.
However, in this case there appears to be no decision, order or ruling of the Commission on
any administrative question or controversy. There was no dispute before the Commission.
Respondent never contested the filing of petitioner's certificate of candidacy. Neither has he
disputed before that body the withdrawal thereof. And even if there was a controversy
before the Commission, the same did not and could not possibly have anything to do with the
conduct of elections. What the parties are actually controverting is whether or not petitioner
was still the municipal mayor after September 15, 1961. This purely legal dispute has absolutely
no bearing or effect on the conduct of the elections for the seat of Congressman for the first
district of Rizal. The election can go on irrespective of whether petitioner is considered
resigned from his position of municipal mayor or not. The only interest and for that matter,
jurisdiction, of the Commission on Elections in this regard is to know who are the running
candidates for the forthcoming elections, for that affects the conduct of election. So when
petitioner withdrew the certificate announcing his candidacy for Congressman, as far as the
Commission could be concerned, petitioner was no longer interested in running for that seat.
The matter of his having forfeited his present position and the possible legal effect thereon by
the withdrawal of his certificate was completely out of the picture. Hence, that purely legal
question properly fell within the cognizance of the courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to his former
position. Sec. 27 of the Rev. Election Code providing that —
Any elective provincial, municipal or city official running for an office, other then the one
which he is actually holding, shall be considered resigned from his office from the moment of
the filing of his certificate of candidacy,"
makes the forfeiture automatic and permanently effective upon the filing of the certificate of
for another office. Only the moment and act of filing are considered. Once the certificate is
filed, the seat is forfeited forever and nothing save a new election or appointment can restore
the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro
v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of filing of the certificate of
candidacy should be taken into account. The law does not make the forfeiture dependent
upon future contingencies, unforeseen and unforeseeable since the vacating is expressly
made as of the moment of the filing of the certificate of candidacy x x x . (Emphasis supplied)
Petitioner's contention that the certificate of candidacy was filed without his knowledge and
consent and, hence, the Commission's approval of its withdrawal invalidated such certificate
for all legal purposes, is untenable. It nowhere appears that the Commission's resolution
expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not
necessarily render the certificate void ab initio. Once filed, the permanent legal effects
produced thereby remain even if the certificate itself be subsequently withdrawn. Moreover,
both the trial court and the Court of Appeals expressly found as a fact that the certificate in
question was filed with petitioner's knowledge and consent. And since the nature of the
remedy taken by petitioner before Us would allow a discussion of purely legal questions only,
such fact is deemed conceded.5
Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a
lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual
damages the salaries he was allegedly entitled to receive from September 21, 1961, to the
date of petitioner's vacation of his office as mayor. In support of this he relies solely upon
Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had
assumed office but was later on ousted in an election protest, is a de facto officer during the
time he held the office of senator, and can retain the emoluments received even as against
the successful protestant. Petitioner's factual premise is the appellate court's finding that he
was a de facto officer when he continued occupying the office of mayor after September 15,
1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here
for absence of factual and legal similarities. The Rodriguez case involved a senator who had
been proclaimed as duly elected, assumed the office and was subsequently ousted as a
result of an election contest. These peculiar facts called for the application of an established
precedent in this jurisdiction that the candidate duly proclaimed must assume office
notwithstanding a protest filed against him and can retain the compensation paid during his
incumbency. But the case at bar does not involve a proclaimed elective official who will be
ousted because of an election contest. The present case for injunction and quo warranto
involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof
and the claim to that office by the vice-mayor because of the operation of Sec. 27 of the
Rev. Election Code. The established precedent invoked in the Rodriguez case can not
therefore be applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from
an officer de facto the salary received by the latter during the time of his wrongful tenure,
even though he entered into the office in good faith and under color of title" 6 that applies in
the present case. The resulting hardship occasioned by the operation of this rule to the de
facto officer who did actual work is recognized; but it is far more cogently acknowledged
that the de facto doctrine has been formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and individuals who get involved in the
official acts of persons discharging the duties of an office without being lawful officers.7 The
question of compensation involves different principles and concepts however. Here, it is
possession of title, not of the office, that is decisive. A de facto officer, not having good title,
takes the salaries at his risk and must therefore account to the de jure officer for whatever
amount of salary he received during the period of his wrongful retention of the public office.8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby,
affirmed in toto. Costs against petitioner. So ordered.
[De Jure and De Facto Officers]
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as
Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE,
as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic
Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in
83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being
resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No.
284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive
official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is
next in rank, but in no case shall any official hold more than two positions other than his
primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or
controlled corporations, at least one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet,
their undersecretaries and assistant secretaries to hold other government offices or positions in
addition to their primary positions, albeit subject to the limitation therein imposed, runs counter
to Section 13, Article VII of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list attached
to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment
during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive
Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815
the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from holding, in
addition to their primary positions, dual or multiple positions other than those authorized by the
1987 Constitution and from receiving any salaries, allowances, per diems and other forms of
privileges and the like appurtenant to their questioned positions, and compelling public
respondents to return, reimburse or refund any and all amounts or benefits that they may
have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary
of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public
office, including membership in the boards of government corporations: (a) when directly
provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-
officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or
(b) if allowed by law; or (c) if allowed by the primary functions of their respective positions;
and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two
(2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public
officers –– one, the President and her official family, and the other, public servants in general –
– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional
rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the
members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987,
as further elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion
No. 155, series of 1988,10 being the first official construction and interpretation by the
Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No.
129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed
by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public official, but only to
the holding of multiple positions which are not related to or necessarily included in the position
of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on
the principal submission that it adds exceptions to Section 13, Article VII other than those
provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise
provided in this Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely: (1) The Vice-
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB
on the Civil Service Commission applies to officers and employees of the Civil Service in
general and that said exceptions do not apply and cannot be extended to Section 13, Article
VII which applies specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of
the Cabinet and their deputies or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because of
the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President
being allowed to become a Member of the Cabinet under the second paragraph of Section
3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial
and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain
that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned
therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of
the broad exceptions made for appointive officials in general under Section 7, par. (2), Article
I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the Constitution to
enact the particular provision and the purpose sought to be accomplished thereby, in order
to construe the whole as to make the words consonant to that reason and calculated to
effect that purpose.11
The practice of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-
created agencies, instrumentalities and government-owned and controlled corporations
created by presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as members of the board
with the corresponding salaries, emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-
enrichment. In fact, the holding of multiple offices in government was strongly denounced on
the floor of the Batasang Pambansa.12 This condemnation came in reaction to the published
report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions"
which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government
service were the data contained therein that Roberto V. Ongpin was a member of the
governing boards of twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each
(14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12)
each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with
the Marcos regime. It was therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as
it was after the people successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are envisioned to remedy, if
not correct, the evils that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling points of the 1987 Constitution during
the campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains
a blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other offices or
employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees
from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries." These sweeping, all-
embracing prohibitions imposed on the President and his official family, which prohibitions are
not similarly imposed on other public officials or employees such as the Members of Congress,
members of the civil service in general and members of the armed forces, are proof of the
intent of the 1987 Constitution to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner
Regalado Maambong noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in the General Provisions and
the anticipated report on the Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7,
Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents' interpretation that Section
13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would
obliterate the distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the
one hand, and the generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position in the government
during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment when so authorized by
the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or
position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB
would render meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to
qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule
and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same
manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution18 and one section is not to be allowed to defeat another, if by
any reasonable construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to
be a positive and unequivocal negation of the privilege of holding multiple government
offices or employment. Verily, wherever the language used in the constitution is prohibitory, it
is to be understood as intended to be a positive and unequivocal negation.21 The phrase
"unless otherwise provided in this Constitution" must be given a literal interpretation to refer
only to those particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional compensation in an ex-officio
capacity as provided by law and as required22 by the primary functions of said officials'
office. The reason is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition of additional
duties and functions on said officials.23 To characterize these posts otherwise would lead to
absurd consequences, among which are: The President of the Philippines cannot chair the
National Security Council reorganized under Executive Order No. 115 (December 24, 1986).
Neither can the Vice-President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit in this Council, which
would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration
(POEA), both of which are attached to his department for policy coordination and guidance.
Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their
respective undersecretaries and assistant secretaries. The Central Bank Governor would then
be assisted by lower ranking employees in providing policy direction in the areas of money,
banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences.
A Constitution, viewed as a continuously operative charter of government, is not to be
interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law
and as required by the primary functions of the concerned official's office. The term ex-officio
means "from office; by virtue of office." It refers to an "authority derived from official character
merely, not expressly conferred upon the individual character, but rather annexed to the
official position." Ex-officio likewise denotes an "act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred
by the office."27 An ex-officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-officio
Chairman of the Board of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board,31 thus: "An examination of section 2
of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board
to qualify they need only be designated by the respective department heads. With the
exception of the representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in the law. Thus,
for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely perform duties in the
Board in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus
means chief or principal function. The term is not restricted to the singular but may refer to the
plural.33 The additional duties must not only be closely related to, but must be required by the
official's primary functions. Examples of designations to positions by virtue of one's primary
functions are the Secretaries of Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and Communications acting as Chairman of the
Maritime Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such positions which confer
on the cabinet official management functions and/or monetary compensation, such as but
not limited to chairmanships or directorships in government-owned or controlled corporations
and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet
Members, their deputies or assistants which are not inconsistent with those already prescribed
by their offices or appointments by virtue of their special knowledge, expertise and skill in their
respective executive offices is a practice long-recognized in many jurisdictions. It is a practice
justified by the demands of efficiency, policy direction, continuity and coordination among
the different offices in the Executive Branch in the discharge of its multifarious tasks of
executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President
and his alter egos, the Cabinet members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully executed.35 Without these
additional duties and functions being assigned to the President and his official family to sit in
the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio
capacity as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and
confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such
additional duties or functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner
Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the
General Provisions, the exception "unless required by the functions of his position,"36 express
reference to certain high-ranking appointive public officials like members of the Cabinet were
made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed
out that there are instances when although not required by current law, membership of
certain high-ranking executive officials in other offices and corporations is necessary by
reason of said officials' primary functions. The example given by Commissioner Monsod was
the Minister of Trade and Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for
saying that additional functions and duties flowing from the primary functions of the official
may be imposed upon him without offending the constitutional prohibition under
consideration, it cannot, however, be taken as authority for saying that this exception is by
virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took
place in the plenary session of September 27, 1986. Under consideration then was Section 3 of
Committee Resolution No. 531 which was the proposed article on General Provisions.39 At
that time, the article on the Civil Service Commission had been approved on third reading on
July 22, 1986,40 while the article on the Executive Department, containing the more specific
prohibition in Section 13, had also been earlier approved on third reading on August 26,
1986.41 It was only after the draft Constitution had undergone reformatting and "styling" by
the Committee on Style that said Section 3 of the General Provisions became Section 7, par.
(2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions
of his position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the matter.
What was primarily at issue and approved on that occasion was the adoption of the qualified
and delimited phrase "primary functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional Commission intended to dilute
the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13
to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family
is by reason of the legal principles governing additional functions and duties of public officials
rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that
only the additional functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1 Debates in
the constitutional convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow citizens whose votes at the
polls gave that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face."43 The proper interpretation therefore depends
more on how it was understood by the people adopting it than in the framers's understanding
thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants
from holding during their tenure multiple offices or employment in the government, except in
those cases specified in the Constitution itself and as above clarified with respect to posts
held without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on the general rule laid down for
all appointive officials should be considered as mere personal opinions which cannot override
the constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a
strict application of the prohibition mandated under Section 13, Article VII on the operations
of the Government, considering that Cabinet members would be stripped of their offices held
in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As
earlier clarified in this decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required by the primary functions
of his office do not fall under the definition of "any other office" within the contemplation of
the constitutional prohibition. With respect to other offices or employment held by virtue of
legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences
are more apparent than real. Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head's ability and expertise, he
should be allowed to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration
of attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.

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

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.
[Tenure/Term of Office]
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 President from a list of career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that appointments to the higher
ranks which qualify the incumbents to assignments as undersecretary and heads of the
bureaus and offices and equivalent positions shall be with the confirmation of the Commission
on Appointments. The President may, however, in exceptional cases, appoint any person who
is not a Career Executive Service eligible, provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be promoted to
a higher class until he qualifies in such examination. (Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive service eligible at
the time of his appointment, he came under the exception to the above rule and so was
subject to the provision that he "shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher rank until he qualifies in such
examination." Not having taken that examination, he could not claim that his appointment
was permanent and guaranteed him security of tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate
eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at will by the appointing
authority and "at a moment's notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in
the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles.3
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.

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

designated.

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

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

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

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

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

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

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

The case of Luego vs. Civil Service 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
[Tenure/Term of Office]
[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.
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

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.
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

e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of
the Service shall be assigned to occupy positions of Undersecretary, Assistant Secretary,
Director
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
if comparable to that of an Assistant IV
Board on the basis of the members functional expertise. . . .

Bureau Director, Department

The rules and regulations promulgated by the CES Board[12] to implement the Integrated
Reorganization Plan are equally clear in providing that
Assistant Regional Director or

Career Executive Service Eligibility

Department Service Chief
if comparable to that of a Bureau V recommended that a Career Executive Service be established. This group of senior
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 Satisfactory or 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
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.
[Tenure/Term of Office]
G.R. No. 127182 January 22, 2001
HON. ALMA G. DE LEON, Chairman, HON. THELMA P. GAMINDE, Commissioner, and HON.
RAMON P. ERENETA, JR., Commissioner, Civil Service Commission, and SECRETARY RAFAEL M.
ALUNAN, III, Department of Interior and Local Government, petitioners,
vs.
HON. COURT OF APPEALS and JACOB F. MONTESA, respondents.
YNARES-SANTIAGO, J.:
Can person who lacks the necessary qualifications for a public position be appointed to it in a
permanent capacity?
Before the Court is a Petition for Review on Certiorari assailing the April 25, 1996 Decision,1 and
November 20, 1996 Resolution2 of the Court of Appeals in CA-G.R. SP No. 38664, which set
aside Resolution Nos. 9532683 and 9552014 of the Civil Service Commission; and declared as
null and void - (1) Department Order No. 94-370,5 issued by the Department of Interior and
Local Government, relieving private respondent of his duties as Department Legal
Counsel/Director III and reassigning him as Director III (Assistant Regional Director), Region XI;
and (2) Administrative Order No. 235 issued by then President Fidel V. Ramos, dropping private
respondent from the rolls of public service, for serious neglect of duty and absences without
official leave.1âwphi1.nêt
On August 28, 1986, private respondent Atty. Jacob F. Montesa, who is not a Career Executive
Service Officer (CESO) or a member of the Career Executive Service, was appointed as
"Ministry Legal Counsel - CESO IV in the Ministry of Local Government" (now Department of
Interior and Local Government [hereafter referred to as Department]), by then Minister
Aquilino Pimentel, Jr. Private respondent's appointment was approved as permanent by the
Civil Service Commission.
On July 25, 1987, then President Corazon C. Aquino promulgated Executive Order No. 262,
reorganizing the Department. On April 8, 1988, then Secretary Luis T. Santos, who succeeded
Minister Pimental, designated Nicanor M. Patricio as chief, Legal Service in place of private
respondent who, in turn, was directed to report to the office of the Secretary to perform
special assignments.
Consequently, private respondent filed before this Court a petition for quo warranto,
docketed as G.R. No. 83470,6 against then Secretary Luis T. Santos and Nicanor Patricio. On
September 26, 1990, we ruled in favor of private respondent Montesa and ordered his
reinstatement to his former position.
Meanwhile, Republic Act No. 6758 (otherwise known as the Salary Standardization Law) took
effect on July 1, 1989. Pursuant thereto, the position of "Department Service Chiefs," which
include the Department Legal Counsel, was reclassified and ranked with "Assistant Bureau
Directors" under the generic position title of "Director III".7
Hence, in the execution of the decision of this Court in G.R. No. 83470, respondent was
reinstated to the position: "Department Legal Counsel and/or Director III."8
On July 26, 1994, then Secretary Rafael M. Alunan III, citing as reasons the interest of public
service and the smooth flow of operations in the concerned offices, issued Department Order
No. 94-370, relieving private respondent of his current duties and responsibilities and
reassigning him as "Director III (Assistant Regional Director), Region XI," 9 Private respondent,
however, did not report to his new assigned position. Instead, he filed a 90-day sick leave, and
upon the expiration thereof on December 5, 1994, he submitted a memorandum for then
acting Secretary Alexander P. Aguirre, signifying his intention to re-assume his position as
Department Legal Counsel/Chief, Legal Services.10
Thereupon, Acting Secretary Aguirre, by memorandum dated December 6, 1994,11 reiterated
to private respondent that the issuance of Department Order No. 94-370, transferring him to
Region XI, was in keeping with the interest of the public service and of the Career Executive
Service (CES) provision on assignment, reassignment, and transfer. Accordingly, private
respondent was advised to report to Region XI immediately.
Private respondent wrote a memorandum dated December 12, 1994,12 requesting for
reconsideration of Department Order No. 94-370, but to no avail. Private respondent
appealed to the Civil Service Commission and the latter issued Resolution No. 95-3268,13 dated
May 23, 1995 which sustained his reassignment to Region XI, on the ground that: 1) the subject
reassignment was not violative of the due process clause of the Constitution or of private
respondent's right to security of tenure; 2) the reassignment did not entail any reduction in
rank or status; 3) private respondent could be reassigned from one station to another without
his consent as the rule against unconsented transfer applies only to an officer who is
appointed to a particular station, and not merely assigned thereto. Private respondent's
motion for reconsideration of the aforesaid Resolution was similarly denied by the Commission
in Resolution No. 955201 dated August 22, 1995.14
On October 10, 1995, the Department directed private respondent to report to his new
assigned post in Region XI, stressing that his continued non-compliance with D.O. No. 94-370 is
prejudicial to the interest of public service, particularly in Region XI. Private respondent was
also warned that upon his failure to comply, the Department shall be constrained to consider
him on Absence Without Leave (AWOL) and as a consequence, drop him from the rolls of
public service.15
Instead of complying therewith, private respondent, on October 23, 1995, filed with the Court
of Appeals a Petition for Review with prayer for the issuance of a temporary restraining order
and/or preliminary injunction. No restraining order or preliminary injunction, however, was
issued by the court,.
On December 13, 1995, then President Fidel V. Ramos, upon the recommendation of the
Department, issued Administrative Order No. 235, dropping private respondent Atty. Jacob F.
Montesa, Director III. Legal Service, from the roster of public servants for serious neglect of
duty and absences without leave (AWOL).16
On April 25, 1996, the Court of Appeals rendered its decision in favor of private respondent,
holding as follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects
petitioner, Jacob F. Montesa, is hereby declared null and void. Petitioner is hereby ordered
retained in his position as "Chief, Legal Service" or "Department Legal Counsel" in the DILG,
without loss of seniority, rank, emolument and privileges. The DILG Secretary is hereby ordered
to release to petitioner his withheld salaries corresponding to the period July 15-21, 1995 and
his back salaries, if also withheld, corresponding to the period July 22, 1995 to September 27,
1995.
Finding that petitioner has not paid the amount of P 500.00 as deposit for costs (page 1, Rollo),
he is hereby ordered to pay the same to the Clerk of this Court within five (5) days from
receipt of this decision
SO ORDERED.17
Both petitioners and private respondent moved for reconsideration. In his Motion for
Clarification and/or Partial Motion for Reconsideration, private respondent prayed for
"backwages to cover the period from October 5, 1995 up to his actual reinstatement to office,
the period from August 1, 1994 to July 14, 1995 having been covered by approved leave of
absences with pay, while the period July 15-21, 1995 is the period where his name was
included in the payroll but release of his salary was illegally withheld by private respondent
Alunan on July 21, 1995, and the period of July 22 to October 4, 1995 is the period where
respondent Alunan withheld his salary even before CSC Resolution No. 95-9201 (should be No.
95-3268) became executory."18 Respondent likewise prayed for the award of RATA during the
period of his illegal dismissal.
Petitioners, on the other hand, posited that the decision of the Court of Appeals is not
confluent with Administrative Order No. 235, issued on December 13, 1995 by then President
Ramos which dropped petitioner from the roster of public servants. They further argued that
until and unless the said Order is declared illegal and/or invalid, the presumption is in favor of
its validity and it is incumbent upon private respondent to comply therewith so as not to
prejudice the public service.
On November 20, 1996, the Court of Appeals issued the assailed resolution modifying its April
25, 1996 decision, thus:
WHEREFORE, premises considered, the Motion for Reconsideration filed by public respondents
is hereby DENIED for lack of merit. Petitioner's Motion for Clarification and/or Partial Motion for
Reconsideration is hereby GRANTED. The dispositive portion of the decision is hereby modified
to read as follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects
petitioner, Jacob Montesa, and Administrative Order No. 235 are hereby declared null and
void. Petitioner is hereby ordered reinstated to his position as "Chief Legal Service" or
"Department legal Counsel" in the DILG, without loss of seniority, rank, emolument and
privileges. The DILG Secretary is hereby ordered to release to petitioner his withheld salaries
and backwages, including allowances (RATA) and other benefits, to which petitioner would
have been entitled had he not been illegally removed, corresponding to the period July 15,
1995 up to his actual reinstatement to office.
SO ORDERED.19
Dissatisfied, petitioners filed the instant petition with this Court, contending that:
I Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the
REPONDENT COURT GARVELY ERRED IN RULING THAT RESPONDENT MONTESA'S REASSIGNMENT
IS ACTUALLY AN UNCONSENTED TRANSFER.
II
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA'S "TRANFER"
CHANGES HIS APPOINMENT FROM PERMANENT TO TEMPORARY AND VIOLATES HIS
CONSTITUTIONAL RIGHT TO SECURITY OF TENURE.
III
RESPONDENT COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN
ORDERING THE REINSTATEMENT OF RESPONDENT MONTESA IN OPEN DISREGARD OF
ADMINISTRATIVE ORDER NO. 235 ISSUED BY THE PRESIDENT OF THE PHILIPPINES DROPPING HIM
FROM THE ROSTER OF PUBLIC SERVANTS.
IV
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA IS ENTITLED TO
BACKAGES, INCLUDING RATA AND OTHER BENEFITS, CORRESPONDING TO THE PERIOD FROM
JULY 15, 1995 UP TO HIS ACTUAL REINSTATEMENT.20
Succinctly put, the pivot of inquiry here boils down to the nature of the appointment of
private respondent Atty. Jacob F. Montesa.
At the outset, it must be stressed that the position of Ministry Legal Counsel – CESO IV is
embraced in the Career Executive Service. Under the Integrated Reorganization Plan,
appointment thereto shall be made as follows:
c. Appointment. Appointment to appropriate classes in the Career Executive Service shall be
made by the President from a list of career executive eligible 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 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.21
Corollarily, the required Career Executive Service eligibility may be then acquired in the
following manner:
Career Executive Service Eligibility
inclusion of his name in the roster of CES eligible. Conferment of CES eligibility is done by the
Board through a formal Board Resolution after an evaluation of the examinee's performance REVERSED and SET ASIDE. Resolution Nos. 953268 and 9555201 of the Civil Service Commission
in the four stages of the CES eligibility examinations.22 are REINSTATED. No pronouncement as to costs.

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

In the case of Achacoso v. Macaraig, et al.,23 the Court held that:

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 or 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 eligible. The
appointment extended to him cannot be regarded as permanent even if it may be so
designated.

Evidently, private respondent's appointment did not attain permanency. Not having taken
the necessary Career Executive Service examination to obtain requisite eligibility, he did not
at the time of his appointment and up to the present, possess the needed eligibility for a
position in the Career Executive Service. Consequently, his appointment as Ministry Legal
Counsel – CESO IV/ Department Legal Counsel and/or Director III, was merely temporary.
Such being the case, he could be transferred or reassigned without violating the
constitutionally guaranteed right to security of tenure.1âwphi1.nêt

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the
mobility and flexibility concepts in the assignment of personnel under the Career Executive
Service24 do not apply to him because he is not a Career Executive Service Officer. Obviously,
the contention is without merit. As correctly pointed out by the Solicitor General, non-eligible
holding permanent appointments to CES positions were never meant to remain immobile in
their status. Otherwise, their lack of eligibility would be a premium vesting them with
permanency in the CES positions, a privilege even their eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no
application in the present case. To reiterate, private respondent's appointment is merely
temporary; hence, he could be transferred or reassigned to other positions without violating
his right to security of tenure.

WHEREFORE, based on the foregoing, the Petition is GRANTED. The April 25, 1996 Decision and
the November 20, 1996 Resolution of the Court of Appeals in CA-G.R. SP No. 38664 are
[Tenure/Term of Office]
The CA aptly summarized the facts of the case before the filing of the petition for
SECOND DIVISION quo warranto as follows:

SAMUEL B. ONG, G.R. No. 184219 The petitioner [Ong] joined the National Bureau of Investigation (NBI) as a career
Petitioner, employee in 1978. He held the position of NBI Director I from July 14, 1998 to February 23, 1999
Present: and NBI Director II from February 24, 1998 to September 5, 2001. On September 6, 2001,
petitioner was appointed Director III by the President. His appointment paper pertinently
- versus - CARPIO, J., reads:
Chairperson,
PEREZ, xxx
SERENO,
REYES, and Pursuant to the provisions of existing laws, the following are hereby appointed to the
OFFICE OF THE PRESIDENT, ET AL., PERLAS-BERNABE, JJ.* NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE co-terminus with the
Respondents. appointing authority:
Promulgated:
xxx
January 30, 2012
SAMUEL B. ONG - DIRECTOR III
x------------------------------------------------------------------------------------x (vice Carlos S. Caabay) [DEPUTY DIRECTOR]

xxx

DECISION On June 3, 2004, the petitioner received from respondent Reynaldo Wycoco
Memorandum Circular No. 02-S.2004 informing him that his appointment, being co-terminus
REYES, J.: with the appointing authority's tenure, would end effectively at midnight on June 30, 2004
and, unless a new appointment would be issued in his favor by the President consistent with
her new tenure effective July 1, 2004, he would be occcupying his position in a de
The Case facto/hold[-]over status until his replacement would be appointed.

Before us is a petition for review[1] on certiorari under Rule 45 of the Rules of Court
filed by Samuel B. Ong (Ong) to assail the Decision[2] rendered by the Court of Appeals (CA)
on August 5, 2008 in CA-G.R. SP No. 88673, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing premises, the petition for quo
warranto filed in this case is hereby DENIED.
SO ORDERED.[3]
Ong died on May 22, 2009 during the pendency of the instant petition.[4]
Admittedly, Ong's death rendered the prayer for reinstatement in the petition for quo
warranto as moot and academic. However, substitution[5] was sought because in the event
that the Court would rule that Ong was indeed entitled to the position he claimed,
backwages pertaining to him can still be paid to his legal heirs. Per Resolution[6]issued on
January 10, 2011, we granted the motion for substitution. The deceased petitioner is now
herein substituted by his wife Elizabeth, and children, Samuel Jr., Elizabeth and Carolyn, all
surnamed Ong.
Antecedents Facts
On December 01, 2004, the President appointed respondent Victor A. Bessat as NBI
Director III as replacement of the petitioner. Consequently, respondent Wycoco notified the
petitioner that, effective on December 17, 2004, the latter should cease and desist from
performing his functions as NBI Director III in view of the presidential appointment of
respondent Bessat as petitioner's replacement. The petitioner received the aforementioned
notice only on January 27, 2005.[7] (underscoring supplied and citations omitted)
On February 22, 2005, Ong filed before the CA a petition for quo warranto. He
sought for the declaration as null and void of (a) his removal from the position of NBI Director
III; and (b) his replacement by respondent Victor Bessat (Bessat). Ong likewise prayed for
reinstatement and backwages.
The CA denied Ong's petition on grounds:
A petition for quo warranto is a proceeding to determine the right of a person to the
use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is
not well-founded, or if he has forfeited his right to enjoy the privilege.[8] Where the action is
filed by a private person, in his own name, he must prove that he is entitled to the
controverted position, otherwise, respondent has a right to the undisturbed possession of the
office.[9]
 Section 27 of the Administrative Code of 1987, as amended, classifies the
appointment status of public officers and employees in the career service into permanent
and temporary. A permanent appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed, including appropriate eligibility
prescribed, in accordance with the provisions of law, rules and standards promulgated in
pursuance thereof. In the absence of appropriate eligibles and it becomes necessary in the
public interest to fill a vacancy, a temporary appointment shall be issued to a person who
meets all the requirements for the position to which he is being appointed except the
appropriate civil service eligibility; provided, that such temporary appointment shall not
exceed twelve months, but the appointee may be replaced sooner if a qualified civil service
eligible becomes available.
x x x In Cuadra v. Cordova,[10] temporary appointment is defined as one made in
an acting capacity, the essence of which lies in its temporary character and its terminability
at pleasure by the appointing power. Thus, the temporary appointee accepts the position
with the condition that he shall surrender the office when called upon to do so by the
appointing authority. The termination of a temporary appointment may be with or without a
cause since the appointee serves merely at the pleasure of the appointing authority.
In the career executive service, the acquisition of security of tenure presupposes a
permanent appointment. As held in General v. Roco,[11] two requisites must concur in order
that an employee in the career executive service may attain security of tenure, to wit: 1) CES
eligibility[;] and 2) appointment to the appropriate CES rank.
In the present case, it is undisputed that the petitioner is a non-CESO eligible. At
best, therefore, his appointment could be regarded only as temporary and, hence, he has no
security of tenure. Such being the case, his appointment can be withdrawn at will by the
President, who is the appointing authority in this case, and at a moment's notice.[12]
Moreover, a perusal of the petitioner's appointment will reveal that his appointment
as NBI Director III is co-terminous with the appointing authority. Correlatively, his appointment
falls under Section 14 of the Omnibus Rules Implementing Book V of the Revised Administrative
Code of 1987 which provides that:[13]
Sec. 14. An appointment may also be co-terminous which shall be issued to a
person whose entrance and continuity in the service is based on the trust and confidence of
the appointing authority or that which is subject to his pleasure, or co-existent with his tenure,
or limited by the duration of project or subject to the availability of funds.
The co-terminous status may thus be classified as follows:
xxxx
(2) Co-terminous with the appointing authority
when appointment is co-existent with the tenure of the appointing authority or at his pleasure;
xxx
xxxx
Thus, although petitioner's appointment is co-terminous with the tenure of the
President, he nevertheless serves at the pleasure of the President and his appointment may be
recalled anytime. The case of Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.[14]
delineated the nature of an appointment held at the pleasure of the appointing power in this
wise:
An appointment held at the pleasure of the appointing power is in essence
temporary in nature. It is co-extensive with the desire of the Board of Directors. Hence, when
the Board opts to replace the incumbent, technically there is no removal but only an
expiration of term and in an expiration of term, there is no need of prior notice, due hearing or
sufficient grounds before the incumbent can be separated from office. The protection
afforded by Section 7.04 of the Code of By-Laws on Removal [o]f Officers and Employees,
therefore, cannot be claimed by petitioner.
All told, petitioner's appointment as well as its consequent termination falls within the
ambit of the discretion bestowed on the appointing authority, the President. Simply put, his
appointment can be terminated at any time for any cause and without the need of prior
notice or hearing since he can be removed from his office anytime. His termination cannot be
said to be violative of Section 2(3), Article IX-B of the 1987 Constitution. When a temporary
appointee is required to relinquish his office, he is being separated from office because his
term has expired.[15] Starkly put, upon the appointment of respondent Bessat as his
replacement, his term of office had already expired.
Likewise, it is inconsequential that the petitioner was replaced by another non-CESO
eligible, respondent Besat. 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.[16]
Indeed, appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide.[17]
In sum, quo warranto is unavailing in the instant case, as the
public office in question has not been usurped, intruded into or unlawfully held by respondent
Bessat. The petitioner had no legal right over the disputed office and his cessation from office
involves no removal but an expiration of his term of office.[18]
Hence, the instant petition ascribing to the CA the following errors:
I.
THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF THE PETITIONER'S REMOVAL BY RESPONDENT
WYCOCO AS NBI DIRECTOR III (DEPUTY DIRECTOR).[19]
II.
THE CA ERRED IN HOLDING THAT SINCE THE PETITIONER HELD A CO-TERMINOUS APPOINTMENT,
HE IS TERMINABLE AT THE PLEASURE OF THE APPOINTING POWER.[20]
Citing Ambas v. Buenaseda[21] and Decano v. Edu,[22] the instant petition
emphasizes that the power of removal is lodged in the appointing authority. Wycoco, and not
the President, issued Memorandum Circular (MC) No. 02-S.2004 informing Ong that his co-
terminous appointment as Director III ended effectively on June 30, 2004. The issuance of MC
No. 02-S.2004 was allegedly motivated by malice and revenge since Ong led the NBI
employees in holding rallies in July 2003 to publicly denounce Wycoco. Hence, Bessat's
assumption of the position was null and void since it was technically still occupied by Ong at
the time of the former's appointment.
It is further alleged that it was erroneous for the CA to equate an
appointment co-terminous with the tenure of the appointing authority with one that is at the
pleasure of such appointing authority.[23] Citing Alba, etc.. v. Evangelista, etcl.,[24] Ong's
counsel distinguished a term as the time during which the officer may claim to hold office as
of right from a tenure which represents the term during which the incumbent actually
holds the office. Ong's appointment, from which he cannot be removed without just cause,
was co-terminous with the President's tenure which ended not on June 30, 2004, but only on
June 30, 2010.
Section 2(b), Article IX-G of the 1987 Constitution and Jocom v. Regalado[25] are
likewise cited to stress that government employees, holding both career and non-career
service positions, are entitled to protection from arbitrary removal or suspension. In the case of
Ong, who started his employment in 1978 and rose from the ranks, it is allegedly improper for
the CA to impliedly infer that the President acted in bad faith by converting his supposed
promotional appointment to one removable at the pleasure of the appointing authority.
In its Comment[26] to the petition, the Office of the Solicitor General (OSG)
maintains that the replacement of Ong by Bessat was fair, just and in
accord with the doctrine enunciated in Aklan College v. Guarino,[27] and with Sections
13[28]and 14,[29] Rule V, Civil Service Commission (CSC) Resolution No. 91-1631 issued on
December 27, 1991. Section 13 substantially provides that only a temporary appointment can
be issued to a person who
does not have the appropriate civil service eligibility. Section 14(2), on the other hand, defines
a co-terminous appointment as one co-existent with the tenure of the appointing authority or
at his pleasure. The last paragraph of Section 14 states that appointments which are co-
terminous with the appointing authority shall not be considered as permanent.
The OSG also points out that in issuing MC No. 02-S.2004, Wycoco did not remove Ong as
Director III but merely reminded the latter that after June 30, 2004, his appointment shall lapse
into a de facto/hold-over status unless he was re-appointed. Ong's colleagues applied for re-
appointment. Bessat was in fact re-appointed as Director II on August 13, 2004. Subsequently,
on December 1, 2004, the President appointed Bessat as Director III, effectively replacing
Ong.
Further, the OSG claims that when Ong accepted promotional appointments in the
Career Executive Service (CES) for which he did not have the required eligibility, he became
a temporary employee and had impliedly abandoned his right to security of tenure.
Our Ruling
The petition is bereft of merit.
MC No. 02-S.2004 did not remove Ong from the position of Director
III. Assuming arguendo that it did, the defect was cured when the President, who was the
appointing authority herself, in whose hands were lodged the power to remove,
appointed Bessat, effectively revoking Ong's appointment.
MC No. 02-S.2004,[30] addressed to Ong, Bessat, Deputy Director Nestor Mantaring,
and Regional Director Edward Villarta, in part reads:
Records indicate your appointment status as co-terminus with the appointing
power's tenure which ends effectively at midnight of this day, 30 June 2004.
Unless, therefore, a new appointment is extended to you by Her Excellency GLORIA
MACAPAGAL-ARROYO, consistent with her new tenure effective 01 July 2004, your services
shall lapse into a de facto/hold[-]over status, to ensure continuity of service, until your
replacements are appointed in your stead.[31]
On December 1, 2004, the President appointed Bessat as Ong's replacement.[32]
Bessat was notified on December 17, 2004. Wycoco
furnished Ong with a Notice,[33] dated December 20, 2004, informing the latter that he should
cease from performing the functions of Director III, effective December 17, 2004.
It is argued that in the hands of the appointing authority are lodged the power to remove.
Hence, Wycoco allegedly acted beyond the scope of his authority when he issued MC No.
02-S.2004.
This Court notes that MC No. 02-S.2004 did not in effect remove Ong from his post. It merely
informed Ong that records of the NBI showed that his co-terminous appointment had lapsed
into a de facto/hold-over status. It likewise apprised him of the consequences of the said
status.
Be that as it may, if we were to assume for argument's sake that Wycoco removed Ong from
his position as Director III by virtue of the
former's issuance of MC No. 02-S.2004, still, the defect was cured when the President herself
issued Bessat's appointment on December 1, 2004. The appointing authority, who in this case
was the President, had effectively revoked Ong's appointment.
Ong lacked the CES eligibility required for the position of Director III and his appointment was
co-terminus with the appointing authority. His appointment being both temporary and co-
terminous in nature, it can be revoked by the President even without cause and at a short
notice.
 This Court likewise finds no error in the CA's ruling that since Ong held a co-terminous
appointment, he was removable at the pleasure of the
appointing authority.
It is established that no officer or employee in the Civil Service shall be removed or
suspended except for cause provided by law.[34] However, this admits of exceptions for it is
likewise settled that the right to security of tenure is not available to those employees whose
appointments are contractual and co-terminous in nature.[35]
In the case at bar, Ong's appointment as Director III falls under the classifications provided in
(a) Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code, to
wit, that which is co-
existent with the tenure of the appointing authority or at his pleasure; and (b) Sections
13(b)[36] and 14(2)[37] of Rule V, CSC Resolution No. 91-1631, or that which is both a
temporary and a co-terminous appointment. The appointment is temporary as Ong did not
have the required CES eligibility.
The case of Amores v. Civil Service Commission, et al.[38] is instructive anent the nature of
temporary appointments in the CES to which the position of Director III held by Ong belonged.
The Court declared:
An appointment is permanent where the appointee meets all the requirements for the
position to which he is being appointed, including the appropriate eligibility prescribed, and it
is temporary where the appointee meets all the requirements for the position except only the
appropriate civil service eligibility.
xxxx
x x x Verily, it is clear that the possession of the required CES eligibility is that which will make an
appointment in the career executive service a permanent one. x x x
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles
to CES positions in the government in the absence of appropriate eligibles and when there is
necessity in the interest of public service to fill vacancies in the government. But in all such
cases, the appointment is at best merely temporary as it is said to be conditioned on the
subsequent obtention of the required CES eligibility. x x x
xxx
Security of tenure in the career executive service, which presupposes a permanent
appointment, takes place upon passing the CES examinations administered by the CES
Board. x x x
At this juncture, what comes unmistakably clear is the fact that because petitioner
lacked the proper CES eligibility and therefore had not held the subject office in a permanent
capacity, there could not have been any violation of petitioners supposed right to security of
tenure inasmuch as he had never been in possession of the said right at least during his tenure
as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against
his separation from office even if it be for no cause and at a moments notice. Not even his
own self-serving claim that he was competent to continue serving as Deputy Director may
actually and legally give even the slightest semblance of authority to his thesis that he should
remain in office. Be that as it may, it bears emphasis that, in any case, the mere fact that an
employee is a CES eligible does not automatically operate to vest security of tenure on the
appointee inasmuch as the security of tenure of employees in the career executive service,
except first and second-level employees, pertains only to rank and not to the office or position
to which they may be appointed.[45][39] (underscoring supplied and citations omitted)
The Court is categorical in the Amores case that an appointee without the requisite
CES eligibility cannot hold the position in a permanent capacity. Temporary appointments are
made if only to prevent hiatus in the government's rendition of public service. However, a
temporary appointee can be removed even without cause and at a moment's notice. As to
those with eligibilities, their rights to security of tenure pertain to ranks but not to the positions
to which they were appointed.
Ong never alleged that at any time during which he held the Director III position, he had
acquired the requisite eligibility. Thus, the right to
security of tenure did not pertain to him at least relative to the Director III position.
The next logical query to be resolved then is whether or not Ong, as an appointee holding a
position co-terminus with the appointing authority, was entitled to remain as Director III until
the end of the President's tenure on June 30, 2010.
We likewise rule in the negative.
Both Section 14 of the Omnibus Rules Rules Implementing Book V of the
Administrative Code and Section 14 (2) of Rule V, CSC Resolution No. 91-1631 define a co-
terminous appointment as one co-existent with the tenure of the appointing authority or at his
pleasure.
In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.[40] cited by the CA in
its decision, we sustained the replacement of an incumbent, who held an appointment at the
pleasure of the appointing authority. Such appointment was in essence temporary in nature.
We categorized the incumbent's replacement not as removal but rather as an expiration of
term and no prior notice, due hearing or cause were necessary to effect the same. In Decano
v. Edu,[41] we ruled that the acceptance of a
temporary appointment divests an appointee of the right to security of tenure against
removal without cause. Further, in Carillo vs. CA,[42] we stated that one who holds a
temporary appointment has no fixed tenure of office; his employment can be terminated at
the pleasure of the appointing authority, there being no need to show that the termination is
for cause.
In Ong's case, his appointment was temporary and co-terminous. The doctrines
enunciated in the cases of Mita Pardo de Tavera, Decano, and Carillo apply. Hence, no legal
challenge can be properly posed against the President's appointment of Bessat as Ong's
replacement. The CA correctly ruled that in quo warranto proceedings, the petitioner must
show that he has a clear right to the office allegedly held unlawfully by another and in the
absence of the said right, the lack of qualification or eligibility of the supposed usurper is
immaterial. Stated differently, where a non-eligible holds a temporary appointment, his
replacement by another non-eligible is not prohibited.[43]
 We note that Ong's counsel had painstakingly drawn distinctions between a term
and a tenure. It is argued that since Ong's appointment was co-terminous with the appointing
authority, it should not had lapsed into a de facto status but continued until the end of the
President's tenure on June 30, 2010.

Under the Omnibus Rules Implementing the Revised Administrative Code and CSC Resolution
No. 91-1631, a co-terminous appointment is defined as one co-existing with the tenure of the
appointing authority or at his pleasure. Neither law nor jurisprudence draws distinctions
between appointments co-existing with the term of the appointing authority on one hand,
and one co-existing with the appointing authority's tenure on the

other. In the contrary, under the aforecited rules, tenure and term are used rather loosely and
interchangeably.

In Ong's case, the issues needed to be disposed of revolve around the concepts of
temporary and co-terminous appointments. The distinctions
between term and tenure find no materiality in the instant petition. Besides, whether or not the
President's term ended on June 30, 2004 or her tenure ceased on June 30, 2010, the fact
remains that she appointed Bessat as Director III, in effect revoking Ong's temporary and co-
terminous appointment.

This Court recognizes Ong's lengthy service rendered to the government and
deeply commisserates with his earlier plight. However, we cannot grant Ong the reliefs he
sought as law and jurisprudence clearly dictate that being a temporary and co-terminous
appointee, he had no vested rights over the position of Director III.

IN VIEW OF THE FOREGOING, the petition is DENIED. The Decision rendered by the
Court of Appeals on August 5, 2008 in CA-G.R. SP No. 88673 is AFFIRMED.
[Tenure/Term of Office]
G.R. No. 185740 July 23, 2013
THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O.
TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.
DECISION
BRION, J.:
We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on
certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2,
2008 of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O.
Gonzales as the Province of Camarines Norte’s provincial administrator, or to an equivalent
position.
Factual Antecedents
Gonzales was appointed as the provincial administrator of the Province of Camarines Norte
by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent
capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum
directing her to explain in writing why no administrative charges should be filed against her for
gross insubordination/gross discourtesy in the course of official duties, and conduct grossly
prejudicial to the best interest of the service; this was later on captioned as Administrative
Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee
found her guilty of the charges against her, and recommended to Governor Pimentel that she
be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad
Hoc Investigation Committee’s recommendation and dismissed Gonzales.5
Proceedings before the Civil Service Commission
Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The
CSC issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales
guilty of insubordination and suspending her for six months. This decision was appealed by
Governor Pimentel, which the CSC denied in its Resolution No. 001952.7
Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which
she claimed that she had already served her six-month suspension and asked to be
reinstated. The CSC issued Resolution No. 002245,8 which directed Gonzales’ reinstatement.
Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but
terminated her services the next day for lack of confidence. He then wrote a letter 9 to the
CSC reporting his compliance with its order, and Gonzales’ subsequent dismissal as a
confidential employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where
the CSC ruled that the provincial administrator position is highly confidential and is
coterminous in nature.
The CSC responded through Resolution No. 030008,11 which again directed Gonzales’
reinstatement as provincial administrator. It clarified that while the Local Government Code of
1991 (Republic Act No. RA 7160) made the provincial administrator position coterminous and
highly confidential in nature, this conversion cannot operate to prejudice officials who were
already issued permanent appointments as administrators prior to the new law’s effectivity.
According to the CSC, Gonzales has acquired a vested right to her permanent appointment
as provincial administrator and is entitled to continue holding this office despite its subsequent
classification as a coterminous position. The conversion of the provincial administrator position
from a career to a non-career service should not jeopardize Gonzales’ security of tenure
guaranteed to her by the Constitution. As a permanent appointee, Gonzales may only be
removed for cause, after due notice and hearing. Loss of trust and confidence is not among
the grounds for a permanent appointee’s dismissal or discipline under existing laws.
In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O.
Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC
responded with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the
provincial administrator position, or to an equivalent position.Thus, the petitioner, through
Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s
Resolution No. 030008 and Resolution No. 061988.
The Appellate Court’s Ruling
The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to
an equivalent position.14
Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a
legal right to his position once he assumes a position in the civil service under a completed
appointment. This legal right is protected both by statute and the Constitution, and he cannot
be removed from office without cause and previous notice and hearing. Appointees cannot
be removed at the mere will of those vested with the power of removal, or without any cause.
The CA then enumerated the list of valid causes for a public officer’s removal under Section
46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and
noted that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’
dismissal on the ground of loss of confidence violated her security of tenure, and that she has
the right to be reinstated with payment of backwages.
The CA further held that Gonzales’ dismissal was illegal because it was done without due
process. The proceedings under Administrative Case No. 001 cannot be the basis for
complying with the requirements of due process because they are separate and distinct from
the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she
was dismissed for lack of confidence, without any hearing, the day after she was reinstated.
Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision,
has long been final and executory. The petitioner did not file any petition for reconsideration
against Resolution No. 002245, and hence, it is no longer alterable.
The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a
Resolution18 dated December 2, 2008.
The Present Petition
In its present petition for review on certiorari, the petitioner argues that the provincial
administrator position has been converted into a highly confidential, coterminous position by
RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the position she held prior
to RA 7160’s enactment.
In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator
remained a career service position. Section 721 of Presidential Decree No. 807, which was one
of the bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial
administrator as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the
Administrative Code. This classification, established by law and jurisprudence, cannot be
altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo
that the provincial administrator position has indeed become a primarily confidential position,
this reclassification should not apply retroactively to Gonzales’ appointment on a permanent
capacity prior to RA 7160’s effectivity.
Issues
The parties’ arguments, properly joined, present to us the following issues:
1) Whether Congress has re-classified the provincial administrator position from a career
service to a primarily confidential, non-career service position; and
2) Whether Gonzales has security of tenure over her position as provincial administrator of the
Province of Camarines Norte.
The Court’s Ruling
We find the petition meritorious.
Congress has reclassified the provincial administrator position as a primarily confidential, non-
career position
We support the CSC’s conclusion that the provincial administrator position has been classified
into a primarily confidential, non-career position when Congress, through RA 7160, made
substantial changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local
Government Code (LGC), did not include a provincial administrator position among the listing
of mandatory provincial officials,24 but empowered the Sangguniang Panlalawigan to create
such other offices as might then be necessary to carry out the purposes of the provincial
government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation
of the provincial administrator position under the old LGC used to be a prerogative of the
Sangguniang Panlalawigan.
Second, in introducing the mandatory provincial administrator position, RA 7160 also
amended the qualifications for the provincial administrator position. While Section 480 27 of RA
7160 retained the requirement of civil service eligibility for a provincial administrator, together
with the educational requirements, it shortened the six-year work experience requirement to
five years.28 It also mandated the additional requirements of residence in the local
government concerned, and imposed a good moral character requirement.
Third, RA 7160 made the provincial administrator position coterminous with its appointing
authority, reclassifying it as a non-career service position that is primarily confidential.
Before RA 7160 took effect, Laurel classified the provincial administrator position as an open
career position which required qualification in an appropriate examination prior to
appointment. Laurel placed the provincial administrator position under the second major
level of positions in the career service under Section 7 of Presidential Decree No. 807. This
provision reads:
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to which requires examinations shall
be grouped into three major levels as follows:
xxxx
2. The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring
at least four years of college work up to Division Chief level.
Section 480 of RA 7160 made the provincial administrator’s functions closely related to the
prevailing provincial administration by identifying the incumbent with the provincial governor
to ensure the alignment of the governor’s direction for the province with what the provincial
administrator would implement. In contrast with the general direction provided by the
provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of
RA 7160 now mandates constant interaction between the provincial administrator and the
provincial governor, to wit:
(b) The administrator shall take charge of the office of the administrator and shall:
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the
case may be, implement the same particularly those which have to do with the management
and administration-related programs and projects which the governor or mayor is
empowered to implement and which the sanggunian is empowered to provide for under this
Code;
(2) In addition to the foregoing duties and functions, the administrator shall:
(i) Assist in the coordination of the work of all the officials of the local government unit, under
the supervision, direction, and control of the governor or mayor, and for this purpose, he may
convene the chiefs of offices and other officials of the local government unit;
xxxx
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be,
on all other matters relative to the management and administration of the local government
unit. [emphases and italics ours]
As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a
close intimate relationship with the office of the governor (its appointing authority) to
effectively develop, implement and administer the different programs of the province. The
administrator’s functions are to recommend to the Sanggunian and to advise the governor on
all matters regarding the management and administration of the province, thus requiring that
its occupant enjoy the governor’s full trust and confidence.
To emphasize the close relations that the provincial administrators’ functions have with the
office of the governor, RA 7160 even made the provincial administrator position coterminous
with its appointing authority.30 This provision, along with the interrelations between the
provincial administrator and governor under Section 480, renders clear the intent of Congress
to make the provincial administrator position primarily confidential under the non-career
service category of the civil service.
Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise
of legislative power that does not violate Gonzales’ security of tenure
Having established that Congress has changed the nature of the provincial administrator
position to a primarily confidential employee, the next question to address would be its
impact on Gonzales’ security of tenure. According to the petitioner, Gonzales lost her security
of tenure when the provincial administrator position became a primarily confidential position.
Gonzales, on the other hand, retorted that the conversion of the position should not be
retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled
in favor of the latter, and gave premium to Gonzales’ original permanent appointment under
the old LGC. They posit that Gonzales acquired a vested legal right over her position from the
moment she assumed her duties as provincial administrator. Thus, she cannot be removed
from office except for cause and after due hearing; otherwise such removal would amount to
a violation of her security of tenure.
The arguments presented by the parties and ruled upon by the CA reflect a conceptual
entanglement between the nature of the position and an employee’s right to hold a position.
These two concepts are different. The nature of a position may change by law according to
the dictates of Congress. The right to hold a position, on the other hand, is a right that enjoys
constitutional and statutory guarantee, but may itself change according to the nature of the
position.
Congress has the power and prerogative to introduce substantial changes in the provincial
administrator position and to reclassify it as a primarily confidential, non-career service
position. Flowing from the legislative power to create public offices is the power to abolish
and modify them to meet the demands of society;31 Congress can change the qualifications
for and shorten the term of existing statutory offices. When done in good faith, these acts
would not violate a public officer’s security of tenure, even if they result in his removal from
office or the shortening of his term.32 Modifications in public office, such as changes in
qualifications or shortening of its tenure, are made in good faith so long as they are aimed at
the office and not at the incumbent.33
In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law
modifying the offices in the Board of Dental Examiners. The new law, RA 546, raised the
qualifications for the board members, and provided for a different appointment process. Dr.
Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the
time RA 546 took effect, filed a special civil action for quo warranto against their
replacements, arguing that their term of office under the old law had not yet expired, and
neither had they abandoned or been removed from office for cause. We dismissed their
petition, and held that Congress may, by law, terminate the term of a public office at any
time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr.
Ignacio were removed for cause or had abandoned their office is immaterial.
More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga,
a permanent appointee to the Executive Director II position, which was not part of the career
executive service at the time of her appointment. During her incumbency, the CSC, by
authority granted under Presidential Decree No. 1, classified the Executive Director II position
to be within the career executive service. Since Dimayuga was not a career executive service
officer, her initially permanent appointment to the position became temporary; thus, she
could be removed from office at any time.
In the current case, Congress, through RA 7160, did not abolish the provincial administrator
position but significantly modified many of its aspects. It is now a primarily confidential position
under the non-career service tranche of the civil service. This change could not have been
aimed at prejudicing Gonzales, as she was not the only provincial administrator incumbent at
the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA
7160 introduced to further empower local governments and decentralize the delivery of
public service. Section 3(b) of RA 7160 provides as one of its operative principles that:
(b) There shall be established in every local government unit an accountable, efficient, and
dynamic organizational structure and operating mechanism that will meet the priority needs
and service requirements of its communities.
Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of
RA 7160 is immaterial to her removal as provincial administrator. For purposes of determining
whether Gonzales’ termination violated her right to security of tenure, the nature of the
position she occupied at the time of her removal should be considered, and not merely the
nature of her appointment at the time she entered government service.
In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that
security of tenure protects the permanent appointment of a public officer, despite
subsequent changes in the nature of his position.
Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a
permanent employee remains a permanent employee unless he is validly terminated," and
from there attempts to draw an analogy between Gabriel and the case at hand.
The very first sentence of Gabriel spells out its vast difference from the present case. The sole
and main issue in Gabriel is whether backwages and other monetary benefits could be
awarded to an illegally dismissed government employee, who was later ordered reinstated.
From this sentence alone can be discerned that the issues involved related to the
consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas
there any mention of a change in the nature of the position held by the public officer
involved.
Further, key factual differences make Gabriel inapplicable to the present case, even if only by
analogy: first, the public officer in Gabriel received a Memorandum stating that he would be
appointed as Transportation District Supervisor III under their office reorganization. Second, the
Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual
employee, which led to his termination from service, was due to a pending protest he filed
before the CSC – indicating that there was no ground for him to not receive the appointment
earlier promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of
trust and confidence in the appointee was sufficient cause for the termination of employment
of a primarily confidential employee. And third, there was a change in the position held by
the public officer in Gabriel. He was a permanent employee who was extended a different
appointment, which was casual in nature, because of a protest that he earlier filed. In
contrast, the current case involves a public officer who held the same position whose nature
changed because of the passage of RA 7160.
The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier 37 to
support its contention that permanent appointees could expect protection for their tenure
and appointments in the event that the Court determines that the position is actually
confidential in nature:
The Court is aware that this decision has repercussions on the tenure of other corporate
secretaries in various GOCCs. The officers likely assumed their positions on permanent career
status, expecting protection for their tenure and appointments, but are now re-classified as
primarily confidential appointees. Such concern is unfounded, however, since the statutes
themselves do not classify the position of corporate secretary as permanent and career in
nature. Moreover, there is no absolute guarantee that it will not be classified as confidential
when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a
final determination as to which positions in government are primarily confidential or otherwise.
In the light of the instant controversy, the Court's view is that the greater public interest is
served if the position of a corporate secretary is classified as primarily confidential in nature.38
The quoted portion, however, even bolsters our theory. Read together with its succeeding
paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the
proposition that other corporate secretaries in government-owned and –controlled
corporations cannot expect protection for their tenure and appointments upon the
reclassification of their position to a primarily confidential position. There, the Court
emphasized that these officers cannot rely on the statutes providing for their permanent
appointments, if and when the Court determines these to be primarily confidential. In the
succeeding paragraph after the portion quoted by the dissent, we even pointed out that
there is no vested right to public office, nor is public service a property right. Thus:
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public
trust," and that there is no vested right in public office, nor an absolute right to hold office. No
proprietary title attaches to a public office, as public service is not a property right. Excepting
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. The rule is that offices in government,
except those created by the constitution, may be abolished, altered, or created anytime by
statute. And any issues on the classification for a position in government may be brought to
and determined by the courts.40 (emphases and italics ours)
Executive Order No. 503 does not grant Gonzales security of tenure in the provincial
administrator position on a permanent capacity
In extending security of tenure to Gonzales’ permanent appointment as provincial
administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503 which
provided certain safeguards against the termination of government employees affected by
the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious
indication of the executive department’s intent to protect and uphold both the national
government and the local government employees’ security of tenure. It cites Section 2(a),
paragraph 8 (providing for the tenure of an administrator) to prove its point:
8. Incumbents of positions, namely administrator, legal officer, and information officer
declared by the Code as coterminous, who hold permanent appointments, shall continue to
enjoy their permanent status until they vacate their positions.
At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in
their permanent appointments even beyond the effectivity of RA 7160. EO 503, however,
does not apply to employees of the local government affected by RA 7160’s enactment. The
title of EO 503 clearly provides for its scope of application, to wit:
Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of
Personnel and Assets, Liabilities and Records of National Government Agencies whose
Functions are to be Devolved to the Local Government Units and for other Related Purposes.
[underscore, italics and emphases ours]
A reading of EO 503’s whereas clauses confirms that it applies only to national government
employees whose functions are to be devolved to local governments:
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991,
hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services
and facilities from the national government agencies (NGAs) concerned to the local
government units (LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be
accompanied by the transfer of the national personnel concerned and assets to ensure
continuity in the delivery of such services and facilities;
WHEREAS, responsive rules and regulations are needed to affect the required transfer of
national personnel concerned and assets to the LGUs. [underscores, italics and emphases
ours]
Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial
administrator. As explained earlier, the existence of the provincial administrator position was a
prerogative of the Sanggunian Panlalawigan, and was not even a mandatory public office
under the old LGC. It is clearly not a national government position whose functions are to be
devolved to the local governments.
The dissenting opinion, on the other hand, argues that EO 503 does not apply to national
government employees only. According to the dissent, the phrase "and for related purposes"
in EO 503’s title could encompass personnel not necessarily employed by national
government agencies but by local government units such as the administrator, the legal
officer and the information officer, as enumerated in Section 2(a), paragraph 8 thereof. This
provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide
whether the term of an incumbent provincial administrator would automatically become
coterminous with that of the appointing authority upon RA 7160’s effectivity.
This kind of construction effectively adds to EO 503’s object matters that it did not explicitly
provide for. The phrase "and for other related purposes" can only add to EO 503 matters
related to the devolution of personnel, basic services and facilities to local government units.
The impact of the change in a local government position’s nature is clearly different from the
implementation of devolution and its ancillary effects: the former involves a change in a local
government position’s functions and concept of tenure, while the latter involves (among
other things) the transfer of national government employees to local government units. This
difference is highlighted by the fact that EO 503, as reflected by its whereas clauses, was
issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the
provincial administrator position may be gleaned from Section 480 of RA 7160. Hence, by no
stretch of reasonable construction can the phrase "and for other related purposes" in EO 503’s
title be understood to encompass the consequences of the change in the local government
position’s nature.
Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to
city, municipal and/or provincial administrators would result in a legal infirmity. EO 503 was
issued pursuant to the President’s ordinance powers to provide for rules that are general or
permanent in character for the purpose of implementing the President’s constitutional or
statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully
executed, then President Corazon Aquino issued EO 503 to ensure the executive’s
compliance with paragraph (i), Section 17 of RA 7160, which requires local government units
to absorb the personnel of national agencies whose functions shall be devolved to them.42
This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed
earlier.
Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of
the Executive usurping a legislative power. The grant of permanent status to incumbent
provincial administrators, despite the clear language and intent of RA 7160 to make the
position coterminous, is an act outside the President’s legitimate powers. The power to create,
abolish and modify public offices is lodged with Congress.43 The President cannot, through an
Executive Order, grant permanent status to incumbents, when Congress by law has declared
that the positions they occupy are now confidential. Such act would amount to the
President’s amendment of an act of Congress – an act that the Constitution prohibits.
Allowing this kind of interpretation violates the separation of powers, a constitutionally
enshrined principle that the Court has the duty to uphold.44
exercise of discretion when he decided that he could no longer entrust his confidence in
Gonzales.
Security of tenure in public office simply means that a public officer or employee shall not be
suspended or dismissed except for cause, as provided by law and after due process. It
cannot be expanded to grant a right to public office despite a change in the nature of the
office held. In other words, the CSC might have been legally correct when it ruled that the
petitioner violated Gonzales’ right to security of tenure when she was removed without
sufficient just cause from her position, but the situation had since then been changed. In fact,
Gonzales was reinstated as ordered, but her services were subsequently terminated under the
law prevailing at the time of the termination of her service; i.e., she was then already
occupying a position that was primarily confidential and had to be dismissed because she no
longer enjoyed the trust and confidence of the appointing authority. Thus, Gonzales’
termination for lack of confidence was lawful. She could no longer be reinstated as provincial
administrator of Camarines Norte or to any other comparable position. This conclusion,
however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits,
and future employment in government service.
WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET
ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the
Court of Appeals in CAG.R. SP No. 97425.

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503
enjoys the legal presumption of validity. Unless the law or rule is annulled in a direct
proceeding, the legal presumption of its validity stands. The EO’s validity, however, is not in
question in the present case. What is at issue is a proper interpretation of its application giving
due respect to the principle of separation of powers, and the dissenting opinion’s
interpretation does violence to this principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of
tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of
whether they belong to the career or non-career service category, are entitled to this
guaranty; they cannot be removed from office except for cause provided by law and after
procedural due process.45 The concept of security of tenure, however, labors under a
variation for primarily confidential employees due to the basic concept of a "primarily
confidential" position. Serving at the confidence of the appointing authority, the primarily
confidential employee’s term of office expires when the appointing authority loses trust in the
employee. When this happens, the confidential employee is not "removed" or "dismissed" from
office; his term merely "expires"46 and the loss of trust and confidence is the "just cause"
provided by law that results in the termination of employment. In the present case where the
trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s
[Tenure/Term of Office]
G.R. No. 168613 : March 5, 2013
ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner, v. TRADE AND INVESTMENT
DEVELOPMENT CORPORATION OF THE PHILIPPINES (TIDCORP), and its BOARD OF DIRECTORS,
Respondents
G.R. No. 185571
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner, v. MA.
ROSARIO S. MANALANG-DEMIGILLO, Respondent.
DECISION
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of
Directors of a government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade
and Investment Development Corporation of the Philippines (TIDCORP) pursuant to Republic
Act No. 8494 entitled An Act Further Amending Presidential Decree No. 1080, As Amended, by
Reorganizing And Renaming the Philippine Export and Foreign Loan Guarantee Corporation,
Expanding Its Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in
accordance with the reorganization ensued. Petitioner Rosario Manalang-Demigillo
(Demigillo) was appointed as Senior Vice President (PG 15) with permanent status, and was
assigned to the Legal and Corporate Services Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the
Government Corporate Counsel (OGCC) relative to TIDCORPs authority to undertake a
reorganization under the law, whose Section 7 and Section 8 provide as follows:cralawlibrary
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of
the Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee
Corporation shall continue to exercise their duties and functions as personnel of the TIDCORP
until reorganization is fully implemented but not to exceed one (1) year from the approval of
this Act. The Board of Directors is authorized to provide for separation benefits for those who
cannot be accommodated in the new structure. All those who shall retire or are separated
from the service on account of the reorganization under the preceding Section shall be
entitled to such incentives, as are authorized by the Corporation, which shall be in addition to
all gratuities and benefits to which they may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado
D. Valdez opined as follows:cralawlibrary
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of Directors
to undertake a reorganization of the corporations present organizational set-up. In fact, the
authority to provide for the corporations organizational structure is among the express powers
granted to PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it
is our considered opinion that the same provision refers to the initial reorganization to effect
transition from the Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee)
to what is now known as the Trade and Investment Corporation of the Philippines (TIDCORP).
The one-year period does not, however, operate as a limitation that any subsequent changes
in the organizational set-up pursuant to the authority of the Board to determine the
corporations organizational structure under Section 7 of RA 8494, which is designed to make
the corporation more attuned to the needs of the people or, in this case, the sector of the
Philippine economy that it serves, can only be made during the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365,
Series of 2002, on October 22, 2002 to approve a so-called Organizational
Refinement/Restructuring Plan to implement a new organizational structure and staffing
pattern, a position classification system, and a new set of qualification standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was
abolished. According to the List of Appointed Employees under the New Organizational
Structure of TIDCORP as of November 1, 2002, Demigillo, albeit retaining her position as a
Senior Vice President, was assigned to head the Remedial and Credit Management Support
Sector (RCMSS). On the same date, President Valdes issued her appointment as head of
RCMSS, such appointment being in nature a reappointment under the reorganization plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and
employees of TIDCORP that the Board of Directors had approved on December 11, 2002 the
appointments issued pursuant to the newly approved positions under the Organizational
Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro
Camacho, however, Demigillo challenged before the Board of Directors the validity of
Resolution No. 1365 and of her assignment to the RCMSS. She averred that she had been
thereby illegally removed from her position of Senior Vice President in the LCSD to which she
had been previously assigned during the reorganization of July 1998. She insisted that contrary
to OGCC Opinion No. 221 dated September 13, 2002 the Board of Directors had not been
authorized to undertake the reorganization and corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors,
Demigillo appealed to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillos appeal to the CSC, alleging that her elevation of
the case to the CSC without the Board of Directors having yet decided her challenge had
been improper and a clear case of forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002
dismissing Demigillos appeal for its lack of merit, thereby rendering the question about the
propriety of Demigillos appeal moot and academic. Board Decision No. 03-002 pertinently
reads as follows:cralawlibrary
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of
the TIDCORP organizational refinements/restructuring. She was reappointed to the same
position she was holding before the reorganization. She was not demoted in terms of salary,
rank and status. There was a (sic) substantial compliance with the requirements of RA 6656,
particularly on transparency. More importantly, the said organizational refinements done and
adoption of a new compensation structure were made in accordance with what is
mandated under the Charter of the Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to
DISMISS the appeal of Atty. Ma Rosario Demigillo for lack of merit.2?r?l1
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her
poor performance rating for the period from January 1, 2002 to December 31, 2002, to
wit:cralawlibrary
After a thorough evaluation/assessment of your job performance for the rating period
January 1 to December 21, 2002, it appears that your over-all performance is Poor.
Records show that you consistently behaved as an obstructionist in the implementation of the
Corporate Business Plan. You failed to demonstrate cooperation, respect and concern
towards authority and other members of the company. You also failed to abide by Civil
Service and company policies, rules and regulation. You miserably failed to adapt and
respond to changes. You were very resentful to new approaches as shown by your vehement
objection to new improved policies and programs. Instead of helping raise the morale of
subordinate at high levels (sic) and promote career and professional growth of subordinates,
you tried to block such efforts towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently
performed the duties, functions and responsibility (sic) of your position, I am constrained to
give you a rating of "Poor" for your 2002 performance.3?r?l1
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr., Executive
Vice President of the Operations Group, appealing the "poor rating" given her by President
Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act
on her appeal because of her "failure to state facts and arguments constituting the grounds
for the appeal and submit any evidence to support the same."4?r?l1
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no
justification to change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her
performance rating for the period from January 1, 2003 to June 2003 "needs improvement,"
attaching the pertinent Performance Evaluation Report Form that she was instructed to return
"within 24 hours from receipt."5?r?l1
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the
memorandum the following comments: "I do not agree and accept. I am questioning the
same. This is pure harassment."???ñr?bl?š ??r†??l l?? l?br?rÿ
She then appealed the poor performance rating on August 14, 2003, calling the rating a part
of Valdes "unremitting harassment and oppression on her."6?r?l1
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive
suspension imposed by the Board of Directors in a separate administrative case for grave
misconduct, conduct prejudicial to the best interest of the service, insubordination and gross
discourtesy. In her memorandum of that date, she informed Atty. Gabriel Jr. of her readiness
to resume her duties and responsibilities, but requested to be allowed to reproduce
documents in connection with the appeal of her performance rating. She further requested
that the relevant grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003
unanimously dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No.
03-003 on August 25, 2003.
Decision of the CSC
On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002
Organizational Refinements or Restructuring Plan of TIDCORP had been valid for being
authorized by Republic Act. No. 6656; that Section 7 of Republic Act No. 8498 granted a
continuing power to TIDCORPs Board of Directors to prescribe the agencys organizational
structure, staffing pattern and compensation packages; and that such grant continued until
declared invalid by a court of competent jurisdiction or revoked by Congress.
The CSC held, however, that TIDCORPs implementation of its reorganization did not comply
with Section 6 of Republic Act No. 6656;9 that although there was no diminution in Demigillos
rank, salary and status, there was nonetheless a demotion in her functions and authority,
considering that the 2002 reorganization reduced her authority and functions from being the
highest ranking legal officer in charge of all the legal and corporate affairs of TIDCORP to
being the head of the RCMSS reporting to the Executive Vice President and having only two
departments under her supervision; and that the functions of Demigillos office were in fact
transferred to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the
mandatory requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules
on Appointments and Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in RCMSS,
a position she accepted without prejudice to her right to appeal the decision of the CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA).
Demigillos appeal was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORPs
appeal was docketed as CA-G.R. SP No. 87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSCs decision, claiming that the CSC
erred: (1) in holding that Section 7 of Republic Act No. 8494 granted the Board of Directors of
TIDCORP a continuing power to reorganize; (2) in holding that the 2002 TIDCORP
reorganization had been authorized by law; and (3) in not holding that the 2002 TIDCORP
reorganization was void ab initio because it was not authorized by law and because the
reorganization did not comply with Republic Act No. 6656.10?r?l1
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo
had been demoted as a result of the 2002 TIDCORP reorganization; and (2) in ruling that
TIDCORP had failed to observe the provisions of Section 2, particularly 2.2 Rule XII of the
Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum Circular
No. 40, Series of 1998) on dropping from the rolls, to the prejudice of Demigillos right to due
process.11?r?l1
On June 27, 2005, the CAs Fourth Division promulgated its decision in CAG.R. SP No. 87285,12
which, albeit affirming the ruling of the CSC, rendered a legal basis different from that given
by the CSC, to wit:cralawlibrary
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, the Supreme Court ruled in the
affirmative that the President of the Philippines has the continuing authority to reorganize the
administrative structure of the Office of the President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the
private respondent-appellee is authorized by law to have a continuous power to reorganize
its agency.13?r?l1
Anent Demigillos contention that the 2002 reorganization effected was invalid, the CA
ruled:cralawlibrary
x x x. 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.
In the case at bench, it is our considered opinion that except for her allegations, the
petitioner-appellant (Demigillo) failed to present sufficient evidence that the reorganization
effected in 2002 did not bear the earmarks of economy and efficiency. Good faith is always
presumed.14?r?l1
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice
President of the LCSD in view of the legality of the 2002 reorganization being upheld.15?r?l1
With respect to CA-G.R. SP No. 87295, the CAs Special Former Thirteenth Division promulgated
a decision on November 28, 2008,16 denying TIDCORPs appeal, and holding that Demigillo
had been demoted and invalidly dropped from the rolls by TIDCORP, explaining:cralawlibrary
We do not need to stretch Our imagination that respondent Demigillo, one of the highest
ranking officers of the corporation, was indeed demoted when she was designated to be the
head of merely one sector. She may have retained her title as SVP, but she was deprived of
the authority she previously enjoyed and stripped of the duties and responsibilities assigned to
her under the Legal and Corporate Services. In utter disregard of respondent Demigillos right
to security of tenure, petitioner TIDCORP demoted her in the guise of "reorganization."?r?l??
xxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls.
This is a delirious supposition which does not deserve merit at all.?r?l??
xxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due
process before dropping Demigillo from the rolls. She was not given the chance to present
evidence refuting the contentious ratings as her employer refused to discuss how it arrived at
such assessment. Her unceremonious dismissal was made even more apparent as she was
never advised of the possibility that she may be separated from service if her rating would not
improve for the next evaluation period.17?r?l1
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in
CA-G.R. SP No. 87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding that
the Board of Directors of TIDCORP was an alter ego of the President who had the continuing
authority to reorganize TIDCORP; and (2) in holding that the reorganization of TIDCORP
effected in 2002 was valid considering her alleged failure to present evidence sufficiently
showing that the reorganization did not bear the earmarks of economy and efficiency.18
Corollarily, she sought her reinstatement to a position comparable to her former position as
Senior Vice President in the LCSD.19?r?l1
Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the
reversal of the decision promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending
that the CA erred: (1) in ruling that Demigillo had been demoted as a result of the TIDCORP
2002 reorganization; and (2) in ruling that Demigillo had not been legally dropped from the
rolls.20?r?l1
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No.
185571.21?r?l1
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant
the petition for review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of
qualified political agency, contending that the acts of the Board of Directors of TIDCORP, an
attached agency of the Department of Finance whose head, the Secretary of Finance, was
an alter ego of the President, were also the acts of the President.
TIDCORPs argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was
introduced in the landmark case of Villena v. The Secretary of Interior.23 In said case, the
Department of Justice, upon the request of the Secretary of Interior, investigated Makati
Mayor Jose D. Villena and found him guilty of bribery, extortion, and abuse of authority. The
Secretary of Interior then recommended to the President the suspension from office of Mayor
Villena. Upon approval by the President of the recommendation, the Secretary of Interior
suspended Mayor Villena. Unyielding, Mayor Villena challenged his suspension, asserting that
the Secretary of Interior had no authority to suspend him from office because there was no
specific law granting such power to the Secretary of Interior; and that it was the President
alone who was empowered to suspend local government officials. The Court disagreed with
Mayor Villena and upheld his suspension, holding that the doctrine of qualified political
agency warranted the suspension by the Secretary of Interior. Justice Laurel, writing for the
Court, opined:cralawlibrary
After serious reflection, we have decided to sustain the contention of the government in this
case on the broad proposition, albeit not suggested, that under the presidential type of
government which we have adopted and considering the departmental organization
established and continued in force by paragraph 1, section 12, Article VII, of our Constitution,
all executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by the Constitution or the law to
act in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or reprobated by
the Chief Executive, presumptively the acts of the Chief Executive. (Runkle v. United States
[1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. v. Eliason [1839], 16
Pet., 291; 10 Law. ed., 968; Jones v. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct.,
Rep., 80; Wolsey v. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox v. Jackson [1836],
13 Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the
principle of qualified political agency in this and similar cases would result in the assumption of
responsibility by the President of the Philippines for acts of any member of his cabinet,
however illegal, irregular or improper may be these acts. The implications, it is said, are serious.
Fear, however, is no valid argument against the system once adopted, established and
operated. Familiarity with the essential background of the type of Government established
under our Constitution, in the light of certain well-known principles and practices that go with
the system, should offer the necessary explanation. With reference to the Executive
Department of the government, there is one purpose which is crystal-clear and is readily
visible without the projection of judicial searchlight, and that is the establishment of a single,
not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principle that "The executive power
shall be vested in a President of the Philippines." This means that the President of the
Philippines is the Executive of the Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and hold office in an advisory capacity,
and, in the language of Thomas Jefferson, "should be of the Presidents bosom confidence" (7
Writings, Ford ed., 498), and in the language of Attorney-General Cushing (7 Op., Attorney-
General, 453), "are subject to the direction of the President." Without minimizing the
importance of the heads of the various departments, their personality is in reality but the
projection of that of the President. Stated otherwise, and as forcibly characterized by Chief
Justice Taft of the Supreme Court of the United States, "each head of a department is, and
must be, the President's alter ego in the matters of that department where the President is
required by law to exercise authority." (Myers v. United States, 47 Sup. Ct. Rep., 21 at 30; 272
U.S. 52 at 133; 71 Law. Ed., 160). x x x. ???ñr?bl?š ??r†??l l?? l?br?rÿ
The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by
such heads in the performance of their official duties are deemed the acts of the President
unless the President himself should disapprove such acts. This doctrine is in recognition of the
fact that in our presidential form of government, all executive organizations are adjuncts of a
single Chief Executive; that the heads of the Executive Departments are assistants and agents
of the Chief Executive; and that the multiple executive functions of the President as the Chief
Executive are performed through the Executive Departments. The doctrine has been
adopted here out of practical necessity, considering that the President cannot be expected
to personally perform the multifarious functions of the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board
of Directors of TIDCORP despite some of its members being themselves the appointees of the
President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further
amended by Section 6 of Republic Act No. 8494,24 the five ex officio members were the
Secretary of Finance, the Secretary of Trade and Industry, the Governor of the Bangko Sentral
ng Pilipinas, the Director-General of the National Economic and Development Authority, and
the Chairman of the Philippine Overseas Construction Board, while the four other members of
the Board were the three from the private sector (at least one of whom should come from the
export community), who were elected by the ex officio members of the Board for a term of
not more than two consecutive years, and the President of TIDCORP who was concurrently
the Vice-Chairman of the Board. Such Cabinet members sat on the Board of Directors of
TIDCORP ex officio, or by reason of their office or function, not because of their direct
appointment to the Board by the President. Evidently, it was the law, not the President, that
sat them in the Board.
Under the circumstances, when the members of the Board of Directors effected the assailed
2002 reorganization, they were acting as the responsible members of the Board of Directors of
TIDCORP constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act
No. 8494, not as the alter egos of the President. We cannot stretch the application of a
doctrine that already delegates an enormous amount of power. Also, it is settled that the
delegation of power is not to be lightly inferred.25?r?l1
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in
accordance with the exclusive and final authority expressly granted under Republic Act No.
8494, further amending Presidential Decree No. 1080, the law creating TIDCORP itself, to
wit:cralawlibrary
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of
the Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding.
???ñr?bl?š ??r†??l l?? l?br?rÿ
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the
CSC that deals with specific cases coming within its area of technical knowledge and
expertise,26 absent a clear showing of grave abuse of discretion on its part. That clear showing
was not made herein. Such deference proceeds from our recognition of the important role of
the CSC as the central personnel agency of the Government having the familiarity with and
expertise on the matters relating to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been
formulated following lengthy consultations and close coordination with the affected offices
within TIDCORP in order for them to come up with various functional statements relating to the
new organizational setup. In fact, the Board of Directors decided on the need to reorganize in
2002 to achieve several worthy objectives, as follows:cralawlibrary
(1) To make the organization more viable in terms of economy, efficiency, effectiveness and
make it more responsive to the needs of its clientèles by eliminating or minimizing any overlaps
and duplication of powers and functions;
(2) To come up with an organizational structure which is geared towards the strengthening of
the Corporation's overall financial and business operations through resource allocation shift;
and
(3) To rationalize corporate operations to maximize resources and achieve optimum
sustainable corporate performance vis-a-vis revised corporate policies, objectives and
directions by focusing the Corporation's efforts and resources to its vital and core
functions.27?r?l1 ???ñr?bl?š ??r†??l l?? l?br?rÿ
The result of the lengthy consultations and close coordination was the comprehensive
reorganization plan that included a new organizational structure, position classification and
staffing pattern, qualification standards, rules and regulations to implement the
reorganization, separation incentive packages and timetable of implementation.
Undoubtedly, TIDCORP effected the reorganization within legal bounds and in response to the
perceived need to make the agency more attuned to the changing times.
Having found the 2002 reorganization to be valid and made pursuant to Republic Act No.
8494, we declare that there are no legal and practical bases for reinstating Demigillo to her
former position as Senior Vice President in the LCSD. To be sure, the reorganization plan
abolished the LCSD, and put in place a set-up completely different from the previous one,
including a new staffing pattern in which Demigillo would be heading the RCMSS, still as a
Senior Vice President of TIDCORP. With that abolition, reinstating her as Senior Vice President in
the LCSD became legally and physically impossible.
Demigillos contention that she was specifically appointed to the position of Senior Vice
President in the LCSD was bereft of factual basis. The records indicate that her permanent
appointment pertained only to the position of Senior Vice President.28 Her appointment did
not indicate at all that she was to hold that specific post in the LCSD. Hence, her re-
assignment to the RCMSS was by no means a diminution in rank and status considering that
she maintained the same rank of Senior Vice President with an accompanying increase in
pay grade.
The assignment to the RCMSS did not also violate Demigillos security of tenure as protected by
Republic Act No. 6656. We have already upheld reassignments In the Civil Service resulting
from valid reorganizations.29 Nor could she claim that her reassignment was invalid because it
caused the reduction in her rank, status or salary. On the contrary, she was reappointed as
Senior Vice President, a position that was even upgraded like all the other similar positions to
Pay Grade 16, Step 4, Level II.30 In every sense, the position to which she was reappointed
under the 2002 reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a
demotion for Demigillo. Her new position was but the consequence of the valid
reorganization, the authority to implement which was vested in the Board of Directors by
Republic Act No. 8494. Indeed, we do not consider to be a violation of the civil servants right
to security of tenure the exercise by the agency where she works of the essential prerogative
to change the work assignment or to transfer the civil servant to an assignment where she
would be most useful and effective. More succinctly put, that prerogative inheres with the
employer,31 whether public or private.
G.R. No. 185571
As earlier stated, TIDCORPs petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not
demoted because she did not suffer any diminution in her rank, status and salary under the
reorganization. Her reassignment to the RCMSS, a smaller unit compared to the LCSD,
maintained for her the same rank of Senior Vice-President with a corresponding increase in
pay grade. The reassignment resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as
the consequence of the application of the rules governing her employment. Section 2 (2.2),
Rule XII of the Revised Omnibus Rules on Appointments and Other Personnel Actions
(Memorandum Circular No. 40, Series of 1998) provides:cralawlibrary
xxx
2.2 Unsatisfactory or Poor Performance
a. An official or employee who is given two (2) consecutive unsatisfactory ratings may be
dropped from the rolls after due notice. Notice shall mean that the officer or employee
concerned is informed in writing of his unsatisfactory performance for a semester and is
sufficiently warned that a succeeding unsatisfactory performance shall warrant his separation
from the service. Such notice shall be given not later than 30 days from the end of the
semester and shall contain sufficient information which shall enable the employee to prepare
an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance, may
be dropped from the rolls after due notice. Notice shall mean that the officer or employee is
informed in writing of the status of his performance not later than the 4th month of that rating
period with sufficient warning that failure to improve his performance within the remaining
period of the semester shall warrant his separation from the service. Such notice shall also for almost 20 years.39 Her familiarity with the dire consequences of a failure to improve a poor
contain sufficient information which shall enable the employee to prepare an explanation. rating under Civil Service rules was justifiably assumed.

Under Section (b), supra, an official or employee may be dropped from the rolls provided the
following requisites are present, namely: (1) the official or employee was rated poor in
performance for one evaluation period; (2) the official or employee was notified in writing of
the status of her performance not later than the 4th month of the rating period with sufficient
warning that failure to improve her performance within the remaining period of the semester
shall warrant her separation from the service; and (3) such notice contained adequate
information that would enable her to prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor
performance rating for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although
Demigillos poor rating was made on an annual basis, that was allowed by the implementing
rules of Executive Order No. 292.32 Regarding the need to give her the written notice of her
performance status not later than the 4th month of the rating period, or at the half of the
semester, the requirement did not apply here because her rating was made on an annual
basis. By analogy, however, the written notice for an annual rating period could be sent on
the 6th month or in the middle of the year. Nevertheless, this was not expressly provided for in
the Civil Service rules. In any case, it is emphasized that the purpose of the written notice
being sent to the affected officer or employee not later than the 4th month of the rating
period has been to give her the sufficient time to improve her performance and thereby avert
her separation from the service. That purpose is the very essence of due process.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor
rating. Her Performance Evaluation Repmi Form, which was attached to the letter,
enumerated several criteria used in measuring her management skills and the corresponding
rating per criterion. The letter even suggested that in order for her to enhance her
performance she should undergo extensive training on business management, a
comprehensive lecture program on Civil Service rules and regulations, and a training on
effective public relations. The letter indicated that the contents of the Performance
Evaluation Report had been discussed with her. Moreover, Demigillo formally appealed the
poor performance rating, except that TIDCORP denied her appeal.40All these circumstances
show that she was given more than enough information about the bases for her poor
performance rating, enabling her to appeal properly.
WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the
decision promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285;
GRANT the petition for review on certiorari in G.R. No. 185571; SET ASIDE the decision
promulgated on November 28, 2008 by the Court of Appeals in its CA-G.R. No. 87295; and
ORDER Atty. MA. ROSARIO MANALANG-DEMIGILLO to pay the costs of suit.
SO ORDERED.

In Demigillos case, therefore, what was crucial was whether she had been allowed to
enhance her performance within a sufficient time from her receipt of the written notice of the
poor performance rating up to her receipt of the written notice of her dropping from the rolls.
The records show that she was, indeed, given enough time for her to show improvement. She
received on April 21, 2003 a letter from President Valdes that indicated her poor performance
rating for the period of January 1, 2002 to December 31, 2002.33 The Board of Directors issued
on August 15, 2003 the decision dropping her from rolls.34 She received a copy of the decision
on August 25, 2003.35 Thereby, she was given almost four months to improve her performance
before she was finally dropped from the rolls.

The second requisite further mentions that the written notice must contain sufficient warning
that failure to improve her performance within the remaining period of the semester shall
warrant separation from the service. Although the letter informing Demigillo of her poor
performance rating did not expressly state such a warning to her, it stated her gross failures in
the performance of her duties.36 The Performance Evaluation Report Form corresponding to
her, which was attached to the memorandum given to her, reflected her poor
performance.36 She was notified in writing of the denial of her appeal of the poor rating.37 It
cannot be denied that the letter of poor rating, the Performance Evaluation Repmi Form, and
the denial of her appeal all signified to her that she could be removed from the service unless
she would improve her performance. Thereby, she was given ample warning to improve, or
else be separated from the service. In that regard, she was certainly not a witless person who
could have missed the significance of such events. She was not only a lawyer. 38 She was also
a mid-level ranking government official who had been in the government corporate sector
[Tenure/Term of Office] 2. Ma. Irma D. Daiz – MPDCO/ Local Civil Registrar

G.R. No. 198682 April 10, 2013 xxx

FRANCISCO C. ADALIM, Petitioner, 4. Erwenia Balmes – Social Welfare Officer III

vs.
ERNESTO TANINAS, JORGE ORITA, MA. IRMA DAIZ (deceased), YOLANDO DEGUINION, GRACE 5. Dolores Peñaflor – Administrative Asst. II
LIM, EMMA T ANINAS, ISIDRO BUSA, MA. NALYN DOTING CO, ESTER ULTRA, FRANCISCO
ESPORAS, ENRICO BEDIASAY, JESUS CHERREGUINE,* AIDA EVIDENTE, RODRIGO TANIÑAS, 6. Aida Evidente – Budgeting Aide
VIRGILIO ADENIT, CLARITA DOCENA, ERENE DOCENA, GUIO BALICHA, LUZ BACULA, PERFECTO
MAGRO, ANACLETO EBIT, DOLORES PENAFLOR, ERWENIA BALMES, CECILIO CEBUANO, MA. 7. Emma Taniñas – Revenue Collector Clerk
ELENA ABENIS, DANILO ALEGRE, and THE COURT OF APPEALS (FIFTH DIVISION), Respondents.
8. Rodrigo V. Taniñas – Revenue Collector Clerk
DECISION
9. Nalyn V. Dotingco – Nurse II
CARPIO, J.:
10. Clarita C. Docena – Midwife II
The Case
xxx
This Petition for Review on Certiorari 1 seeks to reverse the Court of Appeals' Decision2 dated 28
January 2011 and its Resolution3 dated 6 September 2011 in CA-G.R. SP No. 110703. The Court 12. Elena Abenis – Midwife II
of Appeals (CA) affirmed Civil Service Commission (CSC) Resolution No. 09-1197 dated 10
August 2009.4 13. Francisco Esporas – Security Guard II

The Facts 14. Guio Balicha – Security Guard I

During the 10 May 2004 elections, Diego Lim (Lim) was proclaimed Mayor of Taft, Eastern 15. Ernesto Taniñas – Security Guard I
Samar. Petitioner Francisco C. Adalim (Adalim), a candidate for the same position, filed an
election protest against Lim before the Regional Trial Court of Borongan, Eastern Samar, 16. Enrico Bediasay – Security Guard I
Branch 1 (RTC). On 5 August 2005, the RTC ruled in favor of Adalim and declared him as the
17. Luz S. Bacula – Day Care Worker
winning candidate in the elections. On 10 August 2005, Lim appealed the RTC decision with
the Commission on Elections (Comelec).
18. Jorge Orita – Community Affairs Asst.
On 11 August 2005, the RTC granted Adalim’s motion for execution pending appeal. Lim,
xxx
however, continued to hold office in the municipal building. On 13 August 2005, Adalim issued
a Memorandum directing all municipal employees "to log-in and log-out at the Office of the
20. Jesus Aquiatan Cherreguine – Administrative Aide III
Mayor, 4th Floor, Cyrus Hotel." On 15 August 2005, Adalim issued another Memorandum
stating that the local government unit of Taft, Eastern Samar was temporarily relocated at
21. Perfecto Magro – Administrative Aide III
Cyrus Hotel. On the same day, Lim filed a Petition for Certiorari with Temporary Restraining
Order or Status Quo Order before the Comelec against the motion for execution. Thereafter,
22. Yolando Deguinion – Administrative Aide III
the Comelec issued a twenty-day Status Quo Order effective 23 August to 12 September
2005.5 On 10 October 2005, the Comelec denied Lim’s petition for certiorari. Lim filed a Motion 23. Anacleto Ebit – Administrative Aide I
for Reconsideration.
24. Erene V. Docena – Agricultural Technologist
On 24 October 2005, Adalim issued Memorandum No. 03-11-2005 directing all municipal
employees to submit their Daily Time Records (DTRs); otherwise, they would not be paid their 25. Ester D. Ultra – Agricultural Technologist
salaries. On 23 November 2005, the Office of the Municipal Treasurer issued a Certification
listing the employees, which included respondent employees, with no DTRs for the months of 26. Danilo Alegre – Agricultural Technologist
August, September, and October 2005, to wit:
27. Isidro Busa – Administrative Aide I
1. Grace C. Lim – Mun. Budget Officer
28. Virgilio Adenit – Administrative Aide I
29. Cecilio Cebuano – Administrative Aide I6
On the same day, Adalim issued memoranda dropping respondent employees from the rolls
due to absence without official leave (AWOL).7
On 26 May 2006, respondent employees, except Isidro Busa and Ester Ultra, filed an appeal
with the Civil Service Commission Regional Office (CSCRO) No. VIII. On 20 July 2006, Isidro Busa
and Ester Ultra filed a similar appeal. Respondent employees claimed that the memoranda
dropping them from the rolls were issued without due process and without authority. They
argued that the issue as to who won the mayoralty elections was not yet resolved at the time
they were dropped from the rolls. Moreover, respondent employees denied that they were on
AWOL. They alleged that they were regularly reporting for work in the municipal building until
Adalim occupied it on 7 March 2006 and prevented them from entering.
In a Comment dated 9 July 2006, Adalim sought the dismissal of the appeal for being filed out
of time, for failure to pay the appeal fee, and for lack of merit. Adalim alleged that he had
the authority to issue the memoranda based on the writ of execution pending appeal issued
by the RTC. Adalim further claimed that respondent employees were on AWOL because they
failed to submit DTRs and approved leave of absences.
Subsequently, CSCRO No. VIII directed respondent employees to attach the proof of
payment of their appeal fee, to which they complied. In an Order dated 27 October 2006,
the CSCRO No. VIII granted respondent employees’ appeal and ordered their reinstatement
with payment of back salaries. The CSCRO No. VIII ruled that Adalim had no authority to drop
respondent employees from the rolls since the issue on who won the mayoralty elections was
not yet resolved during the period that respondent employees were declared on AWOL. The
CSCRO No. VIII further found that respondent employees continued to report in the municipal
building as evidenced by the police blotter. Respondent employees did not log in on the
office logbook because they were denied access to the office logbook.
Adalim filed a motion for reconsideration but the same was denied by CSCRO No. VIII. On 17
January 2007, Adalim appealed to the CSC.
The Ruling of the Civil Service Commission
On the basis of Adalim’s appeal alone, the CSC issued Resolution No. 07-18458 dated 27
September 2007, reversing the decision of the CSCRO No. VIII. The CSC found merit in Adalim’s
arguments and held that respondent employees indeed failed to report at the assigned
temporary work station causing them to be on AWOL. Hence, respondent employees filed
their motion for reconsideration.
In Resolution No. 09-02629 dated 24 February 2009, the CSC reversed Resolution No. 07-1845
and directed Adalim to reinstate respondent employees to their respective positions with
payment of their salaries and benefits effective August 2005 up to their actual reinstatement.
Adalim moved for reconsideration, which the CSC denied in its Resolution No. 09-119710 dated
10 August 2009. The dispositive portion of the CSC Resolution reads:
WHEREFORE, the Motion for Reconsideration of Mayor Francisco Adalim is DENIED.
Accordingly, CSC Resolution No. 09-0262 dated February 24, 2009 which directed Mayor
Adalim to reinstate Taniñas, et al. to their respective positions and pay their salaries and
benefits effective August 2005 up to their actual reinstatement, STANDS with modification that
the ruling on reinstatement is not applicable to Ma. Irma D. Daiz who died on August 31, 2007
and Isidro Busa who retired on September 14, 2008. They are, however, still entitled to the
salaries and benefits from August 2005 up to the termination of their relation with the
Municipal Government of Taft.
The Motion for Execution of Taniñas, et al. is GRANTED. Accordingly, Mayor Francisco Adalim is
directed to implement the said decision within five (5) days from receipt hereof, otherwise, he
may be cited for contempt and be held liable for Conduct Prejudicial to the Best Interest of
the Service or Neglect of Duty.11
Accordingly, Adalim filed a petition for review with the CA.
The Ruling of the Court of Appeals
In its 28 January 2011 Decision, the CA dismissed Adalim’s petition for want of merit and
affirmed both Resolution Nos. 09-0262 and 09-1197 of the CSC. The CA emphasized that:
x x x this case involves an administrative proceeding, hence, the technical rules of procedure
under the Rules of Court need not be strictly applied pursuant to Section 3, Rule 1 of the
Uniform Rules on Administrative Cases in the Civil Service, which provides:
"Section 3. Technical Rules in Administrative Investigations. - Administrative investigations shall
be conducted without necessarily adhering strictly to the technical rules of procedure and
evidence applicable to judicial proceedings."12
Hence, this petition.
The Issues
Adalim seeks a reversal and assigns the following errors:
I.
THE HONORABLE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN GIVING
DUE COURSE TO THE APPEAL OF RESPONDENT EMPLOYEES WITH THE CSC DESPITE THE FACT THAT
IT WAS FILED OUT OF TIME OR AFTER MORE THAN SIX (6) MONTHS FROM THEIR RECEIPT OF THE
DISMISSAL ORDER.
II.
THE HONORABLE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN GIVING
DUE COURSE TO THE APPEAL OF RESPONDENT EMPLOYEES WITH THE RESPONDENT CSC DESPITE
THE FACT THAT THE APPEAL FEE WAS NOT PAID UNTIL OCTOBER 27, 2007 OR ELEVEN (11)
MONTHS AFTER THEIR RECEIPT OF THE DISMISSAL ORDER. WORSE, THE APPEAL FEE WAS PAID ON
THE VERY SAME DAY WHEN THE CSC REGIONAL OFFICE NO. 8 PROMULGATED ITS DECISION.
III.
THE HONORABLE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN
AFFIRMING THE DECISION OF THE CSC DESPITE THE FACT THAT THE LATTER ADMITTED ISSUES NOT
PRESENTED OR ALLEGED IN THE PLEADINGS.
IV.
THE HONORABLE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN GIVING
DUE COURSE TO THE APPEAL OF RESPONDENT EMPLOYEES WITH THE CSC WHEN IT DECREED:
"HOWEVER, THE ISSUE ON WHO IS THE DULY ELECTED MAYOR DURING THE PERIOD WHEN
TANIÑAS, ET. AL. WERE DECLARED ON ABSENCE WITHOUT OFFICIAL LEAVE (AWOL) WAS STILL
UNRESOLVED BY THE COMELEC", THEREBY DISREGARDING THE WRIT OF EXECUTION PENDING
APPEAL ISSUED ON AUGUST 11, 2005 BY THE REGIONAL TRIAL COURT ON THE ELECTION PROTEST
CASE.13
The Ruling of the Court
The petition has no merit.
At the outset, Adalim assails the CSC’s liberal application of its rules. In a number of cases, we
upheld the CSC’s decision relaxing its procedural rules to render substantial justice.14 The
Revised Rules on Administrative Cases in the Civil Service themselves provide that
administrative investigations shall be conducted without strict recourse to the technical rules
of procedure and evidence applicable to judicial proceedings.15 The case before the CSC
involves the security of tenure of public employees protected by the Constitution. 16 Public
interest requires a resolution of the merits of the appeal instead of dismissing the same based
on a rigid application of the CSC Rules of Procedure.17 Accordingly, both the CSC and the CA
properly allowed respondent employees’ appeal despite procedural lapses to resolve the
issue on the merits.
Having settled the procedural issue, we resolve the main issue of whether respondent
employees were validly dropped from the rolls by Adalim due to AWOL.
Basic is the rule that in petitions for review on certiorari under Rule 45 of the Rules of Court, only
questions of law may be raised by the parties and passed upon by this Court. On the other
hand, the issue of the AWOL of respondent employees is a question of fact.18 Time and again,
this Court held that factual findings of quasi-judicial bodies like the CSC, when adopted and
affirmed by the CA and if supported by substantial evidence, are accorded respect and
even finality by this Court.19 While this Court has recognized several exceptions to this rule, we
do not find any of these exceptions in the present case.
Adalim dropped respondent employees from the rolls due to AWOL using CSC Memorandum
Circular No. 1420 as basis. This means that the employees left or abandoned their posts for a
continuous period of thirty (30) calendar days or more without any justifiable reason and
notice to their superiors.21
Both the CSC and the CA found that respondent employees did not commit AWOL. Despite
the unresolved mayoralty issue in Taft, Eastern Samar, respondent employees were
continuously performing their functions in the municipal building during the period that they
were declared on AWOL, or during August, September and October 2005. The CA, adopting
the findings of the CSC, held:
x x x Contrary to petitioner Adalim’s allegations, in the midst of the political turmoil,
respondents were seen continuously performing their functions at the municipal hall. This fact
was confirmed by the municipal vice mayor, the sangguniang bayan members, the
barangay treasurers, and reported in the police blotter of the Philippine National Police. The
pieces of evidence submitted by the respondents only during the motion for reconsideration
stage should not be taken against them. As they had explained, they were never given the
opportunity by the CSC to file an answer to the appeal filed by Adalim, and that the motion
for reconsideration was the first pleading that they had filed. x x x.22
The records further reveal that respondent employees never intended to go on leave or
abandon their posts. The CSC held that:
After a thorough re-examination of the records, the Commission took note of the peculiar
circumstances of the instant case taking into consideration the uncertain political landscape
in the Municipal Government of Taft after the May 2004 national and local elections. For
reporting to the wrong political camp, the movants, obviously, have become victims and
were caught in the cross-fire, so to speak, between two political rivals x x x. The situation is
further aggravated when the authorities (Regional Trial Court, Department of the Interior and
Local Government and the Commission on Elections) who are supposed to settle the
controversy issue conflicting decisions. As such it is to be expected that the employees did not
know whom to follow between Lim and Adalim because of the conflicting views. x x x 23
(Emphasis supplied)
As pointed out by the CA, during the period that respondent employees were declared on
AWOL, the petition for certiorari against the writ of execution and the appeal on the election
protest were both pending before the Comelec. The Comelec also issued a Status Quo order.
Thus, the CA aptly found that respondent employees "in this particular situation were just
victims of the ill-effects of the intense tug-of-war between Lim and Adalim for the mayoralty
position in Taft, Eastern Samar."24
Thus, we find no reason to depart from the decision of the CA, which affirmed that of the esc,
ordering respondent employees' reinstatement with payment of back salaries.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 28 January 2011 and the
Resolution dated 6 September 2011 in CA-G.R. SP No. 110703. Costs against petitioner.
[Tenure/Term of Office]
[G. R. No. 140335. December 13, 2000]
THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN,
Hon. RAUL C. FLORES and EMMANUEL M. DALMAN, respondents.
DECISION
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to annul and set aside two decisions of
the Commission on Audit ruling that petitioners term of office as Commissioner, Civil Service
Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as
set forth in her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde,
ad interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993,
after taking an oath of office. On September 07, 1993, the Commission on Appointment,
Congress of the Philippines confirmed the appointment. We quote verbatim her appointment
paper:
11 June 1993
Madam:
Pursuant to the provisions of existing laws, you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2, 1999.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office,
furnishing this Office and the Civil Service Commission with copies of your oath of office.[1]
However, on February 24, 1998, petitioner sought clarification from the Office of the President
as to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal
Counsel, in a letter dated April 07, 1998[2] opined that petitioners term of office would expire
on February 02, 2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On
February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit
requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous
staff may be paid their salaries notwithstanding the expiration of their appointments on
February 02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that the
term of Commissioner Gaminde has expired on February 02, 1999 as stated in her
appointment conformably with the constitutional intent.[3]
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of
disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining
to petitioner and her co-terminous staff, effective February 02, 1999.[4]
On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc.
On June 15, 1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioners
appeal. The Commission on Audit affirmed the propriety of the disallowance, holding that the
issue of petitioners term of office may be properly addressed by mere reference to her
appointment paper which set the expiration date on February 02, 1999, and that the
Commission is bereft of power to recognize an extension of her term, not even with the
implied acquiescence of the Office of the President.[5]
In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission
on Audit denied the motion in Decision No. 99-129.[6]
Hence, this petition.[7]
The Issue
The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as
Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993,
expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as
claimed by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil Service Commission is prescribed
in the 1987 Constitution, as follows:
Section 1 (2). The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold office for seven years, a
Commissioner for five years, and another Commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or
acting capacity.[8]
The 1973 Constitution introduced the first system of a regular rotation or cycle in the
membership of the Civil Service Commission. The provision on the 1973 Constitution reads:
x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term
of seven years without reappointment. Of the Commissioners first appointed, one shall hold
office for seven years, another for five years, and the third for three years. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor.[9]
Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution
of a rotational system for the appointment of the Chairman and members of the Commission
on Elections. The Constitutional amendment creating an independent Commission on
Elections provides as follows:
Section 1. There shall be an independent Commission on Elections composed of a Chairman
and two other Members to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term of nine years and may not be
reappointed. Of the Members of the Commission first appointed, one shall hold office for nine
years, another for six years, and the third for three years. The Chairman and the other
Members of the Commission on Elections may be removed from office only by impeachment
in the manner provided in this Constitution."[10]
In Republic vs. Imperial,[11] we said that the operation of the rotational plan requires two
conditions, both indispensable to its workability: (1) that the terms of the first three (3)
Commissioners should start on a common date, and, (2) that any vacancy due to death,
resignation or disability before the expiration of the term should only be filled only for the
unexpired balance of the term.[12]
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date, irrespective of the
variations in the dates of appointments and qualifications of the appointees, in order that the
expiration of the first terms of seven, five and three years should lead to the regular recurrence
of the two-year interval between the expiration of the terms.[13]
Applying the foregoing conditions to the case at bar, we rule that the appropriate starting
point of the terms of office of the first appointees to the Constitutional Commissions under the
1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987
Constitution. In case of a belated appointment or qualification, the interval between the start
of the term and the actual qualification of the appointee must be counted against the
latter.[14]
In the law of public officers, there is a settled distinction between term and tenure. [T]he term
of an office must be distinguished from the tenure of the incumbent. The term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds the office. The term of office is not affected by the hold-
over. The tenure may be shorter than the term for reasons within or beyond the power of the
incumbent.[15]
In concluding that February 02, 1987 is the proper starting point of the terms of office of the
first appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we
considered the plain language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and
Article IX (D), Section 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term
of office for Members of the Constitutional Commissions, without re-appointment, and for the
first appointees terms of seven, five and three years, without re-appointment. In no case shall
any Member be appointed or designated in a temporary or acting capacity. There is no
need to expressly state the beginning of the term of office as this is understood to coincide
with the effectivity of the Constitution upon its ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides:
SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on
Elections, and the Commission on Audit shall continue in office for one year after the
ratification of this Constitution, unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or appointed to a new term thereunder.
In no case shall any Member serve longer than seven years including service before the
ratification of this Constitution.[16]
What the above quoted Transitory Provisions contemplate is tenure not term of the incumbent
Chairmen and Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, who shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become incapacitated to
discharge the duties of their office or appointed to a new term thereunder. The term unless
imports an exception to the general rule.[17] Clearly, the transitory provisions mean that the
incumbent members of the Constitutional Commissions shall continue in office for one year
after the ratification of this Constitution under their existing appointments at the discretion of
the appointing power, who may cut short their tenure by: (1) their removal from office for
cause; (2) their becoming incapacitated to discharge the duties of their office, or (3) their
appointment to a new term thereunder, all of which events may occur before the end of the
one year period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in Article IX, providing
for a seven-five-three year rotational interval for the first appointees under this Constitution.
At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members
of the Civil Service Commission were the following: (1) Chairperson Celerina G. Gotladera.
She was initially appointed as OIC Chairman on March 19, 1986, and appointed chairman on
December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On
June 25, 1986, President Corazon C. Aquino appointed him Commissioner, without any term.
He assumed office on July 9, 1986, and served until March 31, 1987, when he filed a certificate
of candidacy for the position of Congressman, 2nd District, Leyte, thereby vacating his position
as Commissioner. His tenure was automatically cut-off by the filing of his certificate of
candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos
appointed him Commissioner for a term expiring January 25, 1990. He served until February 2,
1988, when his term ended in virtue of the transitory provisions referred to. On May 30, 1988,
President Aquino re-appointed him to a new three-year term and served until May 31, 1991,
exceeding his lawful term, but not exceeding the maximum of seven years, including service
before the ratification of the 1987 Constitution. Under this factual milieu, it was only
Commissioner Yango who was extended a new term under the 1987 Constitution. The period
consumed between the start of the term on February 02, 1987, and his actual assumption on
May 30, 1988, due to his belated appointment, must be counted against him.
Given the foregoing common starting point, we compute the terms of the first appointees
and their successors to the Civil Service Commission under the 1987 Constitution by their
respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On January 30,
1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission.
On March 02, 1988, the Commission on Appointments confirmed the nomination. She
assumed office on March 04, 1988. Her term ended on February 02, 1994. She served as de
facto Chairman until March 04, 1995. On March 05, 1995, the President appointed then Social
Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regular
seven-year term. This term must be deemed to start on February 02, 1994, immediately
succeeding her predecessor, whose term started on the common date of the terms of office
of the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for
a term expiring February 02, 2001.
This is shown in her appointment paper, quoted verbatim as follows: 1999, for Commissioner Thelma P. Gaminde, and February 02, 1997, for Commissioner Ramon
P. Ereeta, Jr.
March 5, 1995
The third batch of appointees would then be having terms of office as follows:
Madam:
First line : Chairman, February 02, 2001 to February 02, 2008; Second line: Commissioner,
Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are February 02, 1999 to February 02, 2006;[26] and, Third line: Commissioner, February 02, 1997 to
hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring February 02, 2004,[27] thereby consistently maintaining the two-year interval.
February 2, 2001.
The line of succession, terms of office and tenure of the Chairman and members of the Civil
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, Service Commission may be outlined as follows:[28]
furnishing this Office and the Civil Service Commission with copies of your oath of office.
Chairman Term Tenure
(Sgd.) FIDEL V. RAMOS (7-year original)
Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Second line : Commissioner Five-year term. February 02, 1987 to February 02, 1992. On January Feb. 02, 1994 March 08,
30, 1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil Service 1995
Commission. On February 17, 1988, the Commission on Appointments, Congress of the De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to
Philippines, confirmed the nomination. He assumed office on March 04, 1988. His term ended (incumbent) Feb. 02, 2001 Feb. 02, 2001
on February 02, 1992. He served as de facto Commissioner until March 04, 1993. _______ - 3rd appointee Feb. 02, 2001 to
Feb. 02, 2008
On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil 2nd Member Term Tenure
Service Commission, for a term expiring February 02, 1999.[18] This terminal date is specified in (5-year original)
her appointment paper. On September 07, 1993, the Commission on Appointments confirmed Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to
the appointment. She accepted the appointment and assumed office on June 22, 1993. She Feb. 02, 1992 March 04,
is bound by the term of the appointment she accepted, expiring February 02, 1999. In this 1993
connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C. Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Corona[19] clarifying that her term would expire on February 02, 2000, was in error. What was Feb. 02, 1999 Feb. 02, 2000
submitted to the Commission on Appointments was a nomination for a term expiring on Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
February 02, 1999. Thus, the term of her successor[20] must be deemed to start on February 02, (incumbent) Feb. 02, 2006 Feb. 02, 2006
1999, and expire on February 02, 2006. 3rd Member Term Tenure
(3-year original)
Third line : Commissioner Three-year term. February 02, 1987 to February 02, 1990. Atty. Mario Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
D. Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. Feb. 02, 1990 May 31, 1991
His extended tenure ended on February 02, 1988. In May, 1988, President Corazon C. Aquino Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
appointed him Commissioner, Civil Service Commission to a new three-year term thereunder. Feb. 02, 1997 Feb. 02, 1997
He assumed office on May 30, 1988. His term ended on February 02, 1990, but served as de Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
facto Commissioner until May 31, 1991. On November 26, 1991, the President nominated Atty. (incumbent) Feb. 02, 2004 Feb. 02, 2004
Ramon P. Ereeta as Commissioner, Civil Service Commission. On December 04, 1991, the The Fallo
Commission on Appointments confirmed the nomination. He assumed office on December WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner,
12, 1991, for a term expiring February 02, 1997.[21] Civil Service Commission, under an appointment extended to her by President Fidel V. Ramos
on June 11, 1993, expired on February 02, 1999. However, she served as de facto officer in
Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President good faith until February 02, 2000, and thus entitled to receive her salary and other
Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission, for emoluments for actual service rendered. Consequently, the Commission on Audit erred in
a term expiring February 02, 2004. He assumed office on February 11, 1997. disallowing in audit such salary and other emoluments, including that of her co-terminous
staff.
Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994,
for the first Chairman,[22] February 02, 1992, for the first five-year term Commissioner,[23] and ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow
February 02, 1990, for the first three-year term Commissioner.[24] Their successors must also the salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous staff
maintain the two year interval, namely: February 02, 2001, for Chairman;[25] February 02, during her tenure as de facto officer from February 02, 1999, until February 02, 2000.