[G.R. No. 98107.

August 18, 1997]

BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and NATIONAL HOUSING CORPORATION,
respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
This is a petition for certiorari to set aside the Decision of the National Labor
Relations Commission (NLRC) dated March 14, 1991, which reversed the
Decision dated May 21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of
lack of jurisdiction.
Petitioner Benjamin C. Juco was hired as a project engineer of respondent
National Housing Corporation (NHC) from November 16, 1970 to May 14, 1975.
On May 14, 1975, he was separated from the service for having been implicated
in a crime of theft and/or malversation of public funds.
On March 25, 1977, petitioner filed a complaint for illegal dismissal against
the NHC with the Department of Labor.
On September 17, 1977, the Labor Arbiter rendered a decision dismissing
the complaint on the ground that the NLRC had no jurisdiction over the case.[1]
Petitioner then elevated the case to the NLRC which rendered a decision on
December 28, 1982, reversing the decision of the Labor Arbiter.[2]
Dissatisfied with the decision of the NLRC, respondent NHC appealed
before this Court and on January 17, 1985, we rendered a decision, the
dispositive portion thereof reads as follows:
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the
respondent National Labor Relations Commission is SET ASIDE. The decision of the
Labor Arbiter dismissing the case before it for lack of jurisdiction is REINSTATED.[3]
On January 6, 1989, petitioner filed with the Civil Service Commission a
complaint for illegal dismissal, with preliminary mandatory injunction.[4]
On February 6, 1989, respondent NHC moved for the dismissal of the
complaint on the ground that the Civil Service Commission has no jurisdiction
over the case.[5]
On April 11, 1989, the Civil Service Commission issued an order dismissing
the complaint for lack of jurisdiction. It ratiocinated that:
The Board finds the comment and/or motion to dismiss meritorious. It was not disputed
that NHC is a government corporation without an original charter but organized/created
under the Corporate Code.
Article IX, Section 2 (1) of the 1987 Constitution provides:
The civil service embraces all branches, subdivisions, instrumentalities and agencies of
the government, including government owned and controlled corporations with original
charters. (underscoring supplied)
From the aforequoted constitutional provision, it is clear that respondent NHC is not
within the scope of the civil service and is therefore beyond the jurisdiction of this board.
Moreover, it is pertinent to state that the 1987 Constitution was ratified and became
effective on February 2, 1987.
WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.[6]
On April 28, 1989, petitioner filed with respondent NLRC a complaint for
illegal dismissal with preliminary mandatory injunction against respondent
NHC.[7]
On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday
ruled that petitioner was illegally dismissed from his employment by respondent
as there was evidence in the record that the criminal case against him was purely
fabricated, prompting the trial court to dismiss the charges against him. Hence,
he concluded that the dismissal was illegal as it was devoid of basis, legal or
factual.
He further ruled that the complaint is not barred by prescription considering
that the period from which to reckon the reglementary period of four years should
be from the date of the receipt of the decision of the Civil Service Commission
promulgated on April 11, 1989. He also ratiocinated that:
It appears x x x complainant filed the complaint for illegal dismissal with the Civil
Service Commission on January 6, 1989 and the same was dismissed on April 11, 1989
after which on April 28, 1989, this case was filed by the complainant. Prior to that, this
case was ruled upon by the Supreme Court on January 17, 1985 which enjoined the
complainant to go to the Civil Service Commission which in fact, complainant did.
Under the circumstances, there is merit on the contention that the running of the
reglementary period of four (4) years was suspended with the filing of the complaint with
the said Commission. Verily, it was not the fault of the respondent for failing to file the
complaint as alleged by the respondent but due to, in the words of the complainant, a
legal knot that has to be untangled.[8]
Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of
which reads:
"Premises considered, judgment is hereby rendered declaring the dismissal of the
complainant as illegal and ordering the respondent to immediately reinstate him to his
former position without loss of seniority rights with full back wages inclusive of
allowance and to his other benefits or equivalent computed from the time it is withheld
from him when he was dismissed on March 27, 1977, until actually reinstated.[9]
On June 1, 1990, respondent NHC filed its appeal before the NLRC and on
March 14, 1991, the NLRC promulgated a decision which reversed the decision
of Labor Arbiter Manuel R. Caday on the ground of lack of jurisdiction.[10]
The primordial issue that confronts us is whether or not public
respondent committed grave abuse of discretion in holding that petitioner
is not governed by the Labor Code.
Under the laws then in force, employees of government-owned and /or
controlled corporations were governed by the Civil Service Law and not by
the Labor Code. Hence,
Article 277 of the Labor Code (PD 442) then provided:
"The terms and conditions of employment of all government employees, including
employees of government-owned and controlled corporations shall be governed by the
Civil Service Law, rules and regulations x x x.
The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:
The Civil Service embraces every branch, agency, subdivision and instrumentality of the
government, including government-owned or controlled corporations.
Although we had earlier ruled in National Housing Corporation v. Juco,[11]
that employees of government-owned and/or controlled corporations, whether
created by special law or formed as subsidiaries under the general Corporation
Law, are governed by the Civil Service Law and not by the Labor Code, this
ruling has been supplanted by the 1987 Constitution. Thus, the said Constitution
now provides:
The civil service embraces all branches, subdivision, instrumentalities, and agencies of
the Government, including government owned or controlled corporations with original
charter. (Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations
Commission,[12] we had the occasion to apply the present Constitution in
deciding whether or not the employees of NASECO are covered by the Civil
Service Law or the Labor Code notwithstanding that the case arose at the time
when the 1973 Constitution was still in effect. We ruled that the NLRC has
jurisdiction over the employees of NASECO on the ground that it is the 1987
Constitution that governs because it is the Constitution in place at the time of the
decision. Furthermore, we ruled that the new phrase with original charter
means that government-owned and controlled corporations refer to
corporations chartered by special law as distinguished from corporations
organized under the Corporation Code. Thus, NASECO which had been
organized under the general incorporation stature and a subsidiary of the
National Investment Development Corporation, which in turn was a subsidiary of
the Philippine National Bank, is excluded from the purview of the Civil Service
Commission.
We see no cogent reason to depart from the ruling in the aforesaid case.
In the case at bench, the National Housing Corporation is a government
owned corporation organized in 1959 in accordance with Executive Order
No. 399, otherwise known as the Uniform Charter of Government
Corporation, dated January 1, 1959. Its shares of stock are and have been one
hundred percent (100%) owned by the Government from its incorporation under
Act 1459, the former corporation law. The government entities that own its
shares of stock are the Government Service Insurance System, the Social
Security System, the Development Bank of the Philippines, the National
Investment and Development Corporation and the Peoples Homesite and
Housing Corporation.[13] Considering the fact that the NHA had been
incorporated under act 1459, the former corporation law, it is but correct to
say that it is a government-owned or controlled corporation whose
employees are subject to the provisions of the Labor Code. This
observation is reiterated in recent case of Trade Union of the Philippines and
Allied Services (TUPAS) v. National Housing Corporation,[14] where we held that
the NHA is now within the jurisdiction of the Department of Labor and
Employment, it being a government-owned and/or controlled corporation
without an original charter. Furthermore, we also held that the workers or
employees of the NHC (now NHA) undoubtedly have the right to form unions or
employees organization and that there is no impediment to the holding of a
certification election among them as they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioners complaint for lack of
jurisdiction because the rule now is that the Civil Service now covers only
government-owned or controlled corporations with original charters.[15]
Having been incorporated under the Corporation Law, its relations with its
personnel are governed by the Labor Code and come under the jurisdiction of
the National Labor Relations Commission.
One final point. Petitioners have been tossed from one forum to another for
a simple illegal dismissal case. It is but apt that we put an end to his dilemma in
the interest of justice.
WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089
dated March 14, 1991 is hereby REVERSED and the Decision of the Labor
Arbiter dated May 21, 1990 is REINSTATED.
SO ORDERED.
G.R. No. L-52091 March 29, 1982 TERESO V. MATURAN, petitioner-
appellant, vs. Mayor SANTIAGO MAGLANA of San Francisco, Southern
Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors BONIFACIO
AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON
GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR
JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO DUTERTE,
Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN
FRANCISCO, SOUTHERN LEYTE, respondents-appellees.

DE CASTRO, J .:
This case was certified to this Court by the Court of Appeals pursuant to its
resolution dated October 30, 1979, the issue raised herein being purely legal,
which is the interpretation of Presidential Decree No. 12-A and Letter of
Instruction No. 14 in relation to the present case.
Petitioner was appointed as patrolman of San Francisco, Southern Leyte on
February 1, 1965 with a compensation of P540.00 per annum. On October 1,
1967 he was promoted to the rank of police sergeant at P720.00 per annum. On
October 8, 1968 and July 1, 1969 petitioner's salary was adjusted to P1,320.00
and P1,800.00 per annum, respectively. All the aforesaid appointments of
petitioner were provisional. On July 1, 1970 his provisional appointment was
renewed. Likewise on July 1, 1971 his provisional appointment was renewed with
an increase in pay in the amount of P2,640.00 per annum.
On September 15, 1972, respondent Mayor Santiago Maglana suspended the
petitioner from office because of two pending criminal cases against him, namely
Criminal Case No. 236, for falsification of public document by making untruthful
statement in the narration of facts, and Criminal Case No. 312, for falsification of
public document. On October 2, 1972 respondent Vice-Mayor Honorio Magoncia,
who was then the Acting Mayor instructed petitioner together with Chief of Police
Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations
pursuant to the Letter of Instruction No. 14 of the President of the Philippines.
Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's
resignation was approved on January 19, 1973 and petitioner was accordingly
informed thereof.
In a letter dated February 19, 1973 petitioner sought the reconsideration of the
approval of his resignation for being null and void on the ground that Letter of
Instruction No. 14 does not apply to him.
In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January
31, 1973 and November 5, 1973, respectively.
In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman
of the National Police Commission informed petitioner that due to the dismissal of
the aforesaid criminal cases, the latter's preventive suspension has been lifted
and petitioner was directed to report for duty to his Chief of Police. Petitioner
reported for duty on February 1, 1974 but Chief of Police Francisco Duterte
refused to accept the former in the police force.
Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the
National Police Commission requesting advice as to whether the resignation
tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply
letter dated August 13, 1974 the Deputy Executive Commissioner stated that
since petitioner resigned from office on October 2, 1972, the lifting of his
suspension as directed in the National Police Commission's letter dated January
12, 1974 is no longer feasible, the same having been rendered moot and
academic; that said office had occasion to rule that resignations submitted by
members of the police force in compliance with the provisions of Letter of
Instruction No. 14 are valid, said Instruction being broad in scope to include both
local and national officials.
Petitioner sought the intervention of the Governor of Southern Leyte to no avail,
hence, on May 21, 1974 petitioner filed a petition for mandamus with claim for
back salaries, traveling expense and damages before the Court of First Instance
of Southern Leyte, Branch III.
It was alleged by petitioner that the refusal of respondents Mayor and Chief of
Police to reinstate him is a violation of paragraph 7 of Presidential Decree No.
12-A which provides:
7. Members of the police force who have been preventively suspended shall,
upon exoneration be entitled to immediate reinstatement and payment of the
entire salary they failed to receive during the period of suspension;
that the case of petitioner falls squarely within the purview of Presidential Decree
No. 12-A which was promulgated on October 4, 1972 and which governs
policemen with pending cases; and that Letter of Instruction No. 14 under whose
provisions petitioner was made to resign is not applicable to policemen.
In respondents' answer dated July 3, 1974, they set up the defense that
petitioner has falsely entered in his duly sworn information sheet that he is a high
school graduate of the University of Manila during the school year 1954-55, but in
his Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he
feloniously alleged and/or entered therein that he is a graduate of the Pana-on
Academy in the school year 1950-51 when in truth he was only a second year
high school student; that petitioner, who has voluntarily resigned, needs a new
appointment and has to meet the qualifications required by law among which,
are, that he must be at least a high school graduate and not over 33 years of
age; that petitioner falls short of these requirements; and that petitioner is
notoriously undesirable, publicly known to be of bad moral character and
oftentimes got drunk while on duty.
On February 4, 1975 respondent court issued a decision dismissing the petition
for lack of merit. The court a quo agreed with the opinion of the National Police
Commission that resignations submitted by members of the police force in
compliance with the provisions of Letter of Instruction No. 14 are valid. Since
petitioner has been separated from the service, reinstatement is not the proper
remedy. The court also said that the evidence of conflicting entries on petitioner's
two information sheets have not been denied or rebutted, hence the
preponderance of evidence is against the petitioner that he is not a high school
graduate, as he could not have graduated in two high schools, one in the
University of Manila during the school year 1954-55 and the other at the Pana-on
Academy during the school year 1950-51. Lastly, the trial court ruled that since
all petitioner's appointment were provisional, he can be removed at any time by
the appointing power, Mayor Maglana.
On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For
failure of respondents to submit their brief, the case was submitted for decision
on November 16, 1976.
Petitioner made the following assignment of errors:
FIRST ERROR
THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF
PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN
FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH
RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE
PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND
WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE LEGAL
AND VALID;
SECOND ERROR
THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE
REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR
MAGLANA;
THIRD ERROR
THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR
COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT
PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS
PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY;
and
FOURTH ERROR
THE COURT BELOW ERRED IN DISMISSING THIS CASE AND
DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND
TRAVELING EXPENSES.
Petitioner contends that under Presidential Decree No. 12-A promulgated on
October 4, 1972 the power to dismiss or remove a member of the police force
has been transferred from the Mayor to the Police Commission. Hence, the
acceptance of petitioner's resignation by respondent Mayor on January 19, 1973
is null and void because the latter is no longer clothed with authority to dismiss or
remove a member of the police force on said date. Furthermore, petitioner
stresses that Letter of Instruction No. 14 under whose provisions he was made to
resign is not applicable to him as said Instruction covers only officials and
employees with pending cases excluding policemen. Lastly, petitioner banks on
his testimonial eligibility which he obtained on October 10, 1974 to justify his
reappointment.
Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and
Investigation Boards in the Police Commission to review and dispose of all
administrative cases of city and municipal forces referred to the Commission. On
October 4, 1972 Presidential Decree 12-A was promulgated providing for the
procedure to be followed in case an administrative charge is filed against any
member of the local police agency or when a member of the police force is
accused in court of any felony or violation of law. Nowhere in the provisions of
said Presidential Decrees show that the power to dismiss or remove has been
transferred from the Mayor to the Police Commission as contended by petitioner.
It was only on August 8, 1974 when such power was removed from the Mayor
pursuant to 'Presidential Decree No. 531 integrating the municipal police forces
in an the municipalities of the province of Southern Leyte. Presidential Decree
No. 531 states:
SEC. 6. Power of administrative control and supervision. Administrative
control and supervision over the several police and fire departments and jails
composing each of the Integrated Police Forces herein constituted shall, prior to
the transfer provided for in Section 7 hereof, remain with the offices, agencies
and officials in which said power is vested in accordance with existing laws; ...
Accordingly, administrative matters, such as appointment promotion suspension
separation and other disciplinary action ... and such other matters pertaining to
personnel administration which are currently vested in and exercised by other
officials pursuant to existing laws, rules and regulations shall remain with said
officials, ...
SEC. 7. Administrative control and supervision to be transferred to the Philippine
Constabulary. After one year, but not later than two years, from the effectivity
of this Decree, the power and administrative control and supervision provided for
in Section 6 hereof shall be taken over and exercised by the Philippine
Constabulary. ...
It is clear therefore that at the time petitioner's resignation was approved
by respondent Mayor on January 19, 1973 the latter still had the power to
dismiss or remove the former.
Petitioner did not dispute that at the time he was appointed member of the Police
Force of San Francisco, Southern Leyte, he had neither qualified in an
appropriate examination for the position of policeman nor was he possessed with
any civil service eligibility for any position in the government. Such lack of a civil
service eligibility makes his appointment temporary
1
and without a definite
term and is dependent entirely upon the pleasure of the appointing power.
2

Although indicated as provisional and approved under Section 24 (c)
3
of
Republic Act 2260 the petitioner's appointment did rot acquire the character of
provisional appointment because of his lack of appropriate civil service eligibility
for the position of municipal policeman. The Civil Service Commission cannot
even legally approve his appointment as provisional as this act would constitute
an unwarranted invasion of the discretion of the appointing power.
4
If the
approval of his appointment as provisional under Section 24 (c) of Republic Act
2260 did not make it so, the fact remains that his appointment was temporary
which could be terminated without any need to show that the termination was for
cause.
5

The fact that petitioner subsequently obtained a testimonial eligibility on October
10, 1974 is of no moment. At the time he received his appointment, as
aforestated, petitioner had no eligibility. As such what is required is a new
appointment, not merely reinstatement. But even then, he cannot compel the
Mayor to reappoint him for the power to appoint is in essence discretionary and
the appointing power enjoys sufficient discretion to select and appoint employees
on the basis of their fitness to perform the duties and assume the responsibilities
of the position filled.
6

WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby
affirmed. No costs.
SO ORDERED.
G.R. No. L-16969 April 30, 1966
R. MARINO CORPUS, plaintiff-appellant, vs. MIGUEL CUADERNO, SR.,
defendant-appellee.
Rosauro L. Alvarez, for plaintiff-appellant. G. B. Guevara, R. P. Guevara and E.
S. Tipon, for defendant-appellee.
MAKALINTAL, J .:
This is a suit for damage commenced in the Court of First Instance of Manila,
where plaintiff asked for half a million pesos and defendant, on his counterclaim,
for one and a half million. After trial the court dismissed the complaint and
awarded P1,000.00 to defendant. Plaintiff appealed directly to Us in view of the
amount claimed by him.
During the time pertinent to this case defendant was Governor of the Central
Bank of the Philippines. On January 13, 1949 Corpus was appointed Economist
in the Department of Economic Research of said bank. Thereafter he received
promotions in position and salary. By 1954 he was Director of the Department of
Loans and Credit and Rural Banks Administration. On December 15, 1954 a
number of employee of the bank filed an administrative complaint against him.
Upon their petition he was suspended from office on February 8, 1955. After
investigation he was found guilty on five counts and upon recommendation of the
Governor was penalized with suspension without pay from February 8, 1955 to
August 30, 1955, the date the Monetary Board of the bank rendered its decision.
On August 31, 1955 Corpus received a letter from Cuaderno informing him that
be had been "reinstated in the service of the bank" with the designation of
"Technical Assistant to the Governor." On January 17, 1956 he was appointed
Special Assistant to the Governor, in charge of the Export Department.
On March 7, 1958 several of his co-employees in the same department filed an
administrative complaint against him, alleging a number of acts of misfeasance.
The Monetary Board, upon recommendation of the Governor, suspended him on
March 18.
On March 25, 1958 Corpus instituted the present action, alleging that his
suspension was unwarranted and had been brought about by Cuaderno's
malicious machinations. The latter's counterclaim, after the denials and special
defenses in his answer, alleged that the complaint had been filed maliciously and
that plaintiff had committed libel against him.
On May 5, 1959, while this case was still pending in the lower court, the three-
man committee created to investigate the 1958 administrative charges against
plaintiff reported to the Monetary Board that if found no basis to recommend
disciplinary action against him and therefore urged that he be reinstated. But on
July 20, 1959 the Monetary Board resolved that:
After an exhaustive and mature deliberation of the report of the aforesaid fact-
finding committee, and representations of both complainants and respondent,
through their respective counsel; and, further, after a thorough review of the
service record of the respondent, particularly the various cases presented
against him, object of Monetary Board Resolution No. 1527 dated August 30,
1955, which all involve fitness, discipline, etc. of respondent; and moreover, upon
formal statement of the Governor that he has lost confidence in the
respondent as Special Assistant to the Governor and in charge of the
Export Department (such position being primarily confidential and highly
technical in nature), the Monetary Board finds that the continuance of the
respondent in the service of the Central Bank would be prejudicial to the
best interest of the Central Bank and, therefore, in accordance with the
provisions of Section 14 of the Bank Charter, considers the respondent, Mr. R.
Marino Corpus, resigned as of the date of his suspension.
On March 22, 1960 the lower court rendered the decision appealed from,
absolving Cuaderno from liability but ordering Corpus to pay damages, as
aforesaid, the allegation of libel having been duly proven.
Appellant now avers that the lower court erred in holding (1) that appellee is not
liable for damages for illegally causing his suspension and eventual removal; and
(2) that appellant had committed libel against appellee.
In connection with the first issue it is pertinent to state that the question of legality
of appellant's removal by resolution of the Monetary Board of July 20, 1959 has
been decided by Us in another case (G.R. No. L-23721, March 31, 1965). We
found there that he had been removed not for any of the charges in the
administrative complaint against him in 1958 charges as to which no specific
findings were made by the Monetary Board but by reason of loss of
confidence by the Governor of the Bank; and held that loss of confidence
alone is not a sufficient and legitimate cause for removal even if the
position involved, as in appellant's case, belongs to the category of policy-
determining, primarily confidential or highly technical positions referred to
in the Constitution. In that case, therefore, We ordered appellant's
reinstatement in the service.
The question here now is whether appellant's removal was the result of
malicious machinations on the part of appellee, as alleged in the complaint.
Appellant starts by saying that Cuaderno harbored a feeling of professional
jealousy against him because he was a much solicited guest speaker on
economic matters a subject appellee considered his forte; and that on one
occasion, during a hearing in Congress, appellant gave testimony contrary to that
which appellee had given, thus putting the latter in a bad light. Resentment
according to appellant was followed by overt acts, thus: Appellee induced a
number of bank employees to file the administrative complaints of 1955 and
1958. The 1955 complaint was dated January 20, but as early as January 11
appellee saw to it that an investigating committee was created by the Monetary
Board. And before appellant was given a chance to explain his side he was
suspended, upon appellee's recommendation, on February 8, 1955. Appellant
was not given a chance to read the charges against him except during the trial of
the instant case. After the investigation appellant received a letter from appellee,
informing him of his reinstatement, but without mentioning the fact that he had
been found guilty and given the penalty of suspension without pay. Appellee
even congratulated him on his exoneration. To completely convince appellant of
this, appellee ordered the preparation of the "back salary" check corresponding
to appellant's period of suspension, only to have the check cancelled later on.
After the second administrative complaint was filed in 1958 appellee hastily
convened an extraordinary meeting of the Monetary Board in order to magnify
the false charges against appellant although appellee knew that the meeting was
violative of the Central Bank charter, because the object of the meeting, as
aforesaid, was not stated in the call, and the object actually stated did not justify
an extraordinary meeting at all. To lull appellant into a false sense of security,
appellee simply notified him, by letters, to prepare comments on the
administrative charges, leading him to believe that he had all the time to do so,
but afterwards appellee suddenly changed his tactics and directed the secretary
of the Monetary Board to demand that appellant answer the charges as soon as
possible. And on March 18, 1958 appellee informed appellant that he had been
suspended effective that day. The corresponding letters and notices were
delivered to appellant at his house by the bank's security guards, who were in
uniform and fully armed a manner of delivery that proved humiliating to
appellant.
We first take up the question of appellant's removal from office as a result of the
administrative complaint filed against him in 1958. The removal was embodied in
a resolution of the Monetary Board, upon appellee's recommendation as
Governor of the Bank. The procedure adopted was in accordance with the
provision of the bank charter that the Monetary Board shall "on the
recommendation of the Governor, appoint, fix the remunerations, and remove all
officers and employees of the Central Bank." (Section 14, R.A. 265.) Under this
provision the Board has the power to adopt or reject the recommendation. The
decisive action belonged to the Board, not to appellee.
In speaking of the action of the Board, this Court said in G.R. No. L-23721,
supra: "we do not believe that in opining that the position of Corpus was
one dependent on confidence, the defendant Monetary Board necessarily
acted with vindictiveness or wantonness, and not in the exercise of honest
judgment."
The record does not show that it was appellee who instigated either or both of
the administrative cases against appellant. The 1955 complaint was filed by ten
bank employees, while the one in 1958 was filed by eighteen of appellant's
subordinates in his department persons who would naturally be expected to
feel greater loyalty to appellant, their immediate superior, than to appellee. None
of the complainants in the first group were in the second group. No acts are
attributed to appellee from which it may be inferred that he convinced all or a
large number of them to file the charges.
Appellant stresses the fact that in the first administrative case, even before the
complainants filed their complaint of January 20, 1955 the Monetary Board had
already created an investigating committee, based on "papers presented by the
Governor." The resolution to that effect was passed January 11, 1955. The
evidence shows, however, that the complainants charged appellant as early as
December 15, 1954, reiterated their complaint on the following December 26,
and again on January 3, 1955. The complaint of January 20, 1955 was only a
more formal and detailed narration of the charges.
In any event, some of the charges were substantiated. True, appellant was
absolved of negligence in the performance of official duties and
dishonesty, but he was found guilty on five other counts, namely: (1)
physical maltreatment of a co-employee; (2) use of insulting language; (3)
oppressive treatment of subordinates; (4) promulgation of unreasonable
office regulations; and (5) defiance to the Monetary Board. Under the
circumstances, malice can hardly be imputed to anybody in the formulation
of those charges.
Appellant says it was only during the trial of the present case that he read a copy
of the 1955 administrative complaint against him. We are hard put to believe this.
One who is thus charged, and suspended by reason thereof, would lose no time
finding out what the charges are. And after the administrative investigations had
been terminated and appellant received a letter informing him of his restoration to
office, he would want to know whether he had been exonerated or not. The fact
is that he requested appellee to intercede for him in convincing the members of
the Monetary Board to amend the resolution imposing upon him the penalty of
suspension without pay a fact which certainly does not jibe with his alleged
ignorance of the charges of which he had been found guilty.
Contrary to appellant's claim, it was not appellee who was responsible for the
cancellation of the check covering the period of his suspension. In fact appellee
was the one who had the check prepared on September 6, 1955, just before he
left on a trip to Istanbul; but as appellant himself stated in a letter-complaint he
sent to the Presidential Complaints and Action Committee the check "was
subsequently cancelled upon orders of Acting Deputy Governor Castillo on the
strength of the Monetary Board resolution which was prepared after Governor
Cuaderno's departure on September 6th." This is confirmed by appellant's
witness, Jose Carmona, who was Chief Accountant of the Central Bank at the
time.
Neither was appellee responsible for appellant's preventive suspension in
connection with the two administrative cases against him. The pertinent
resolution of the Monetary Board shows that it suspended appellant (in 1955)
"after being appraised (sic) of the findings and observations of the Committee
created on January 11, 1955 on the matter at its present stage." The Board was
then acting on complainants' petition dated January 3, 1955, precisely urging
appellant's suspension. Likewise it appears that in the 1958 administrative case
the complainants filed, on March 12 of that year, a motion for the immediate
suspension or relief from office of appellant; and (to quote from the
corresponding resolution) "after a lengthy and mature deliberation on the matter
and upon the recommendation of the Governor, the Board, by unanimous vote,
decided to suspend from office effective today, March 18, 1958, Mr. R.
Marino Corpus." Both acts of suspension were by the Monetary Board, not
by appellee. If appellee recommended suspension, he did so in the
performance of his duty as he saw it and not in pursuance of an insidious
scheme against appellant.
Concerning the alleged humiliating manner in which the communications from
the Monetary Board were served upon appellant, we fail to see how appellee
may be held responsible. The bank's security guards who delivered them may
have been in uniform and armed at the time, but it does not appear that they did
anything to call the public's attention to the import of the messages they were
carrying. If they acted in an oppressive and high-handed manner, it is they and
not appellee who should be made to answer.
Appellant says that after appellee had lulled him into a false sense of security in
connection with the 1958 case, the latter suddenly pressed him to file his answer
without first furnishing him a copy of the complaint. The record fails to
substantiate this grievance. The complaint was filed on March 7, 1958. Appellant
received a letter from Deputy Governor Castillo asking him to appear at the
Central Bank at 9 in the evening of March 10, 1958, to furnish the Monetary
Board with certain information. According to appellant, when he went to the
meeting hall as directed he found nobody there except the Board Secretary,
Attorney Filomeno Sta. Ana. In the afternoon of March 14, 1958 appellant
received a letter from Sta. Ana asking him to answer the charges. Appellant
apparently did not reply to the letter. Then on March 17, 1958 Sta. Ana, upon
appellee's instructions, again sent appellant a memorandum asking him to submit
his answer without delay. Instead of answering the charges, or asking for a copy
thereof if he did not have a copy, as he now claims, appellant had his
subordinate, Orlando Villanueva, write a letter on March 18, 1958, telling Sta.
Ana that "Mr. Corpus has instructed me to inform you that his lawyer, Atty.
Rosauro Alvarez (Roseller Lim and Rosauro Alvarez Law Offices) is now sick
with flu and is asking for time." Considering that appellant had engaged a lawyer
to defend him, his allegation of ignorance of the charges deserves scant credit.
All that may be said about appellee's actuations is that he lost confidence in
appellant in view of the charges filed against him in 1958; and although they
were not substantiated, appellee believed in good faith that such loss of
confidence was sufficient reason to recommend appellant's removal.
We come now to the question of libel, which is the subject of appellee's
counterclaim. The statements for which appellee seeks damages from appellant
appeared in the March 21, 1958 issue of The Manila Chronicle, as follows:
CORPUS TALKS OF "INTRIGUER "
A suspended Central Bank official yesterday said that a high-ranking CB official,
who was dismissed for malversation from the Philippine National Bank before the
war, intrigued and instigated the filing of charges against him.
In an interview, R. Marino Corpus, who was suspended the other day as special
assistant to the CB governor and head of the CB export department asserted that
the "intriguer" was "dismissed from the PNB when my father, Judge Rafael
Corpus, was president of the bank.
Corpus was suspended on the basis of an administrative complaint filed by 18 of
the 78 employees of the CB export department.
In a previous interview, Corpus preferred not to comment on his suspension
beyond saying that "time will tell who instigated the charges, and why."
Yesterday, Corpus called for the ouster of the CB official he was referring to,
averring that this official was automatically disqualified by the CB charter from
holding a position in the Bank which calls for "high moral integrity."
When this story hits the streets, the CB official who will be cussing me and will be
pushing hard to have me disqualified from the CB will be the one who instigated
the charges against me, Corpus added. "He will stop at nothing to run me down,
because now that he is exposed, he is automatically disqualified by the charter of
the bank from holding a position which calls for high moral integrity."
Recalling how this CB official was dismissed from the PNB before the war,
Corpus said the man was discovered "milking" a sugar central.1wph1.t
The suspended CB official added that President Quezon ordered this official's
dismissal because he felt that the moment he (Mr. Quezon) was convinced a
government official holding a position of trust was unfit to remain in public
service, out he would go.
ASK THEM
Pressed for the identification of the official he was referring to, Corpus said the
following would be in a position to reveal who the person was: CB Governor
Miguel Cuaderno, who was assistant general manager of the PNB then; CB legal
counsel Natalio Balboa, who was in the PNB legal department; CB chief
accountant Jose Carmona, who was also in the PNB accounting department, and
others like Primitivo Lovina, president of the Chamber of Commerce of the
Philippines; PNB President Arsenio Jison, Manuel Marquez, president of the
Commercial Bank and Trust Company, and Alfonso Calalang, President of the
Bankers Association of the Philippines.
In disclaiming liability, appellant points out that in the aforequoted news item it
does not appear that he was speaking of appellee.
In order to maintain a libel suit it is essential that the victim be identifiable (People
vs. Monton, L-16772, November 30, 1962), although it is not necessary that he
be named (91 A.L.R. 1161). It is enough if by intrinsic reference the allusion is
apparent or if the publication contains matters of description or reference to facts
and circumstances from which others reading the article may know the plaintiff
was intended, or if he is pointed out by extraneous circumstances so that
persons knowing him could and did understand that he was the person referred
to.
While no name is mentioned in appellant's defamatory statements, the following
circumstances mentioned therein make the object ascertainable: (1) the person
in question was a high ranking Central Bank official; (2) he was formerly an
official of the Philippine National Bank, and at the time had something to do with
sugar centrals; (3) his identity is known by the persons named therein; and (4) he
was the one who instigated the aforementioned charges against appellant.
All these circumstances point to appellee. It is established by the evidence that at
least two other persons who read the article readily realized that it referred to
appellee. Asked how he immediately arrived at such a conclusion, Manuel
Marquez explained that "there is a paragraph in the article which says that this
CB official was dismissed from the PNB before the war, Corpus said the man
was discovered milking a sugar central;" and that "the only official who is at
present in the Central Bank and who was with the Philippine National Bank prior
to the establishment of the Central Bank, who, to my knowledge, was in some
way or another connected with the Sugar Central was Governor Miguel
Cuaderno." Aside from appellee, two Central Bank officials who were also with
the Philippine National Bank were Natalio Balboa, who was in the legal
department thereof, and Jose Carmona, who was in the auditing department.
Balboa testified that he knew the article was about appellee for the following
reasons:
Because, as I said, the first paragraph of the article it refers to "Intriguer" and I
know no other, Mr. Corpus is referring to "intriguer" to Mr. Cuaderno because I
know that he was trying to prevail on Mr. Cuaderno to stop the administrative
investigation against Mr. Corpus, when he failed to prevail on Mr. Cuaderno
because the other employees are pressing the complaint and the complaint was
submitted to the Monetary Board, and he made the conclusion that it was Mr.
Cuaderno as the intriguer, that is the first part of it. The second part of it is that he
was dismissed from the Philippine National Bank by President Quezon. President
Quezon will not dismiss any official of the Philippine National Bank other than the
President, Vice-President, General Manager, and Assistant Manager. He would
not dismiss the other executive officials or the legal counsel or others, it must be
the Philippine National Bank Board of Directors. The third of it is that milking a
sugar central, there is no other person connected with the sugar central but Mr.
Cuaderno, with the Bataan Sugar Central. I was connected as Secretary of the
Ma-ao Sugar Central and there was no complaint and we only met once a month,
so, all those there and my opinion was not based on one single item of the
article, it was all those three and the rest of the article may be.
Appellant pointed particularly to Marquez and Balboa as among the persons who
could identify the Central Bank official he was speaking of, and both declared
that the article referred to appellee. Furthermore, five days after he gave the
press interview, appellant instituted the present action wherein he accused
appellee of having instigated the administrative charges against him a fact
which obviously proves that he was speaking of appellee when he made the
derogatory statement complained of.
In view of the evidence just considered, We cannot apply here the rule in Kunkle
vs. Cablenews-American, 42 Phil. 757, relied upon by appellant, that the
publication of a matter of a defamatory nature in a newspaper, without naming or
accurately describing the person to whom the reprobated acts are attributed, will
not give rise to a civil action for damages at the instance of a person claiming to
be the injured party, unless it appears that the description of the person referred
to in the defamatory publication was sufficiently clear that at least one third
person would have understood the description as relating to him. Here, more
than one third person identified appellee as the object of the libel.
Appellee has not appealed from the decision of the lower court and therefore his
prayer that the amount of damages awarded to him be increased must be
denied..
The judgment appealed from is affirmed, with costs against plaintiff-appellant.
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN,
JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a
public officer, who has been granted an absolute pardon by the Chief
Executive, is entitled to reinstatement to her former position without need
of a new appointment.
|
In a decision rendered on March 25, 1983, the Sandiganbayan convicted
petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and
three other accused, of the complex crime of estafa thru falsification of public
documents and sentenced them to imprisonment of four (4) years, two (2)
months and one (1) day of prision correccional as minimum, to ten (10) years
and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They
were further ordered to jointly and severally indemnify the government in the sum
of P4,892.50 representing the balance of the amount defrauded and to pay the
costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently
affirmed the same. She then filed a motion for reconsideration but while said
motion was pending, she was extended on December 17, 1984 by then
President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting
that she be restored to her former post as assistant city treasurer since the same
was still vacant.

Petitioners letter-request was referred to the Ministry of Finance for resolution in
view of the provision of the Local Government Code transferring the power of
appointment of treasurers from the city governments to the said Ministry. In its
4th Indorsement dated March 1, 1985, the Finance Ministry ruled that
petitioner may be reinstated to her position without the necessity of a new
appointment not earlier than the date she was extended the absolute
pardon. It also directed the city treasurer to see to it that the amount of
P4,892.50 which the Sandiganbayan had required to be indemnified in favor of
the government as well as the costs of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry
on April 17, 1985 stressing that the full pardon bestowed on her has wiped
out the crime which implies that her service in the government has never
been interrupted and therefore the date of her reinstatement should
correspond to the date of her preventive suspension which is August 1,
1982; that she is entitled to backpay for the entire period of her suspension;
and that she should not be required to pay the proportionate share of the
amount of P4,892.50.

The Ministry of Finance, however, referred petitioners letter to the Office of the
President for further review and action. On April 15, 1986, said Office, through
Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as
borne out by the records, petitioner was convicted of the crime for which she was
accused. In line with the governments crusade to restore absolute honesty in
public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77
Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute
pardon, of a former public officer is the only ground for reinstatement to his
former position and entitlement to payment of his salaries, benefits and
emoluments due to him during the period of his suspension pendente lite.

In fact, in such a situation, the former public official must secure a reappointment
before he can reassume his former position.

Anent the civil liability of Monsanto, the Revised Penal Code expressly
provides that a pardon shall in no case exempt the culprit from payment
of the civil indemnity imposed upon him by the sentence. (Sec. 36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is
not entitled to an automatic reinstatement on the basis of the absolute pardon
granted her but must secure an appointment to her former position and that,
notwithstanding said absolute pardon, she is liable for the civil liability
concomitant to her previous conviction.

Her subsequent motion for reconsideration having been denied, petitioner filed
the present petition in her behalf We gave due course on October 13, 1987.

Petitioners basic theory is that the general rules on pardon cannot apply to
her case by reason of the fact that she was extended executive clemency
while her conviction was still pending appeal in this Court. There having
been no final judgment of conviction, her employment therefore as assistant city
treasurer could not be said to have been terminated or forfeited. In other words,
without that final judgment of conviction, the accessory penalty of forfeiture of
office did not attach and the status of her employment remained suspended.
More importantly, when pardon was issued before the final verdict of guilt, it was
an acquittal because there was no offense to speak of. In effect, the President
has declared her not guilty of the crime charged and has accordingly dismissed
the same. 4

It is well to remember that petitioner had been convicted of the complex crime of
estafa thru falsification of public documents and sentenced to imprisonment of
four years, two months and one day of prision correccional as minimum, to ten
years and one day of prision mayor as maximum. The penalty of prision mayor
carries the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable during
the term of the principal penalty. 5 Temporary absolute disqualification bars the
convict from public office or employment, such disqualification to last during the
term of the sentence. 6 Even if the offender be pardoned, as to the principal
penalty, the accessory penalties remain unless the same have been expressly
remitted by the pardon. 7 The penalty of prision correccional carries, as one of
its accessory penalties, suspension from public office. 8

The propositions earlier advanced by petitioner reveal her inadequate
understanding of the nature of pardon and its legal consequences. This is not
totally unexpected considering that the authorities on the subject have not been
wholly consistent particularly in describing the effects of pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of
the Kings wrath. But Philippine jurisprudence on the subject has been largely
influenced by American case law.

Pardon is defined as an act of grace, proceeding from the power entrusted
with the execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive magistrate,
delivered to the individual for whose benefit it is intended, and not
communicated officially to the Court. A pardon is a deed, to the validity
of which delivery is essential, and delivery is not complete without
acceptance. 8-a

At the time the antecedents of the present case took place, the pardoning power
was governed by the 1973 Constitution as amended in the April 7, 1981
plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant reprieves,
commutations and pardons, remit fines and forfeitures, and with the concurrence
of the Batasang Pambansa, grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be
extended only upon final conviction, implying that clemency could be given even
before conviction. Thus, petitioners unconditional pardon was granted even as
her appeal was pending in the High Court. It is worth mentioning that under the
1987 Constitution, the former limitation of final conviction was restored. But be
that as it may, it is our view that in the present case, it is not material when the
pardon was bestowed, whether before or after conviction, for the result
would still be the same. Having accepted the pardon, petitioner is deemed
to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a
full and absolute pardon in relation to the decisive question of whether or not the
plenary pardon had the effect of removing the disqualifications prescribed by the
Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently
adopted by the courts on the various consequences of pardon: we adopt the
broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7,
1940, that subject to the limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative action; that an absolute
pardon not only blots out the crime committed but removes all disabilities
resulting from the conviction. (W)e are of the opinion that the better view in the
light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or
impair the power of the Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the rigidity of the law to the
extent of relieving completely the party concerned from the accessory and
resultant disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several
others 12 show the unmistakable application of the doctrinal case of Ex Parte
Garland, 13 whose sweeping generalizations to this day continue to hold sway in
our jurisprudence despite the fact that much of its relevance has been
downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of
the offender; and when the pardon is full, it releases the punishment and
blots out of existence the guilt, so that in the eye of the law the offender is
as innocent as if he had never committed the offense. If granted before
conviction, it prevents any of the penalties and disabilities, consequent
upon conviction, from attaching; if granted after conviction, it removes the
penalties and disabilities and restores him to all his civil rights; it makes
him, as it were, a new man, and gives him a new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved.
15 The modern trend of authorities now rejects the unduly broad language of the
Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this is the more realistic
approach. While a pardon has generally been regarded as blotting out the
existence of guilt so that in the eye of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes. The
very essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime and
the conviction thereof. It does not wash out the moral stain. It involves
forgiveness and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the
offenders innocence) as relieving the party from all the punitive consequences of
his criminal act, including the disqualifications or disabilities based on the finding
of guilt. 17 But it relieves him from nothing more. To say, however, that the
offender is a new man, and as innocent as if he had never committed the
offense; is to ignore the difference between the crime and the criminal. A person
adjudged guilty of an offense is a convicted criminal, though pardoned; he may
be deserving of punishment, though left unpunished; and the law may regard him
as more dangerous to society than one never found guilty of crime, though it
places no restraints upon him following his conviction. 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends
for the past. It affords no relief for what has been suffered by the offender. It does
not impose upon the government any obligation to make reparation for what has
been suffered. Since the offense has been established by judicial proceedings,
that which has been done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no satisfaction for it can be
required. 20 This would explain why petitioner, though pardoned, cannot be
entitled to receive backpay for lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief
Executive declared her not guilty of the crime for which she was convicted. In the
case of State v. Hazzard, 21 we find this strong observation: To assume that all
or even a major number of pardons are issued because of innocence of the
recipients is not only to indict our judicial system, but requires us to assume that
which we all know to be untrue. The very act of forgiveness implies the
commission of wrong, and that wrong has been established by the most
complete method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they cannot
erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are
prepared to concede that pardon may remit all the penal consequences of a
criminal indictment if only to give meaning to the fiat that a pardon, being a
presidential prerogative, should not be circumscribed by legislative action,
we do not subscribe to the fictitious belief that pardon blots out the guilt of
an individual and that once he is absolved, he should be treated as if he
were innocent. For whatever may have been the judicial dicta in the past, we
cannot perceive how pardon can produce such moral changes as to equate a
pardoned convict in character and conduct with one who has constantly
maintained the mark of a good, law-abiding citizen.

Pardon cannot mask the acts constituting the crime. These are historical facts
which, despite the public manifestation of mercy and forgiveness implicit in
pardon, ordinary, prudent men will take into account in their subsequent
dealings with the actor. 23

Pardon granted after conviction frees the individual from all the penalties
and legal disabilities and restores him to all his civil rights. But unless
expressly grounded on the persons innocence (which is rare), it cannot
bring back lost reputation for honesty, integrity and fair dealing. 24 This
must be constantly kept in mind lest we lose track of the true character and
purpose of the privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case,
we are in full agreement with the commonly-held opinion that pardon does not
ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction 25 although such
pardon undoubtedly restores his eligibility for appointment to that office.
26

The rationale is plainly evident Public offices are intended primarily for the
collective protection, safety and benefit of the common good. They cannot be
compromised to favor private interests. To insist on automatic reinstatement
because of a mistaken notion that the pardon virtually acquitted one from the
offense of estafa would be grossly untenable. A pardon, albeit full and plenary,
cannot preclude the appointing power from refusing appointment to anyone
deemed to be of bad character, a poor moral risk, or who is unsuitable by reason
of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or
ineligibility from public office forms part of the punishment prescribed by the
Revised Penal Code for estafa thru falsification of public documents. It is clear
from the authorities referred to that when her guilt and punishment were
expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was
forfeited by reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be and
should be evaluated and taken into account to determine ultimately whether she
can once again be entrusted with public funds. Stated differently, the pardon
granted to petitioner has resulted in removing her disqualification from
holding public employment but it cannot go beyond that. To regain her
former post as assistant city treasurer, she must re-apply and undergo the
usual procedure required for a new appointment.

Finally, petitioner has sought exemption from the payment of the civil indemnity
imposed upon her by the sentence. The Court cannot oblige her. Civil liability
arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not served
by pardon, amnesty or commutation of sentence. Petitioners civil liability may
only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of
creditor and debtor, compensation and novation. 27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary
Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the
majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City.
Together with three (3) other accused, she was charged before the
Sandiganbayan with the complex crime of Estafa through falsification of public
documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
correccional, as maximum, and to pay a fine of P 3,500.00. They were also
ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the
same. Petitioner then filed a motion for reconsideration but while said motion was
pending, President Ferdinand E. Marcos extended to her on 17 December 1984
an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City
Treasurer of Calbayog, the Ministry of Finance and the Office of the President,
asked that she be allowed to re-assume her former office, as of 1 August 1982
(the date of her preventive suspension), that she be paid her back salaries for the
entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioners request for
automatic reinstatement as well as her other claims, because of which denial,
this petition for review on certiorari was filed before the Court seeking the setting
aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted
an absolute pardon by the President, she is entitled to reinstatement to her
former position without need of a new appointment, and to the other reliefs
prayed for.

There can be no dispute that the pardon extinguished petitioners criminal
liability. At the same time, Art. 36 of the Revised Penal Code categorically covers
the effects of a pardon on the pardoneds right to hold office, suffrage and on his
civil liability. It states:

ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right
to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind,
clear that the pardon extended by the President to the petitioner did not per se
entitle her to again hold public office (including therefore the office of Assistant
Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil
liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner
was granted an absolute and unconditional pardon and restored to full civil and
political rights, yet, nothing therein expressly provides that the right to hold
public office was thereby restored to the petitioner. In view of the express
exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my considered
opinion that, to the extent that the pardon granted to the petitioner did not
expressly restore the right to hold public office as an effect of such pardon, that
right must be kept away from the petitioner.

It is a recognized principle in public law hopefully to be honored more in its
compliance rather than in its breach that a public office is a public trust. The
restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be
left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would not be
asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that
an absolute pardon, without qualification, restores full civil rights which have
been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in
order, so that an absolute pardon to work a restoration of the right to hold public
office must expressly so state, in order to give substance and meaning to the
sound provisions of Article 36 of the Revised Penal Code, particularly in the light
of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief
Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the
same time, I would add a few brief statements, basically for my own clarification.
Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. A pardon shall not work the registration of the
right to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times
by the Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of perpetual
absolute disqualification and that of civil interdiction during thirty years following
the date of sentence, unless such accessory penalties have been expressly
remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. Their accessory
penalties. The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the sentence
as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.

Article 42. Prision mayor Its accessory penalties. The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

Article 43. Prision correccional Its accessory penalties. The penalty of prision
correccional shall carry with it that of suspension from public office, from the right
to follow a profession or calling, and that of perpetual special disqualification from
the right of suffrage, if the duration of said imprisonment shall exceed eighteen
months. The offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the
complex crime of estafa through falsification of public documents, included the
accessory penalties of temporary absolute disqualification from public office or
employment and perpetual special disqualification from the right of suffrage. The
17 December 1984 pardon extended to petitioner in the instant case was written
on a standard printed form which states in printed words that it was an absolute
and unconditional pardon [which] restored [petitioner] to full civil and political
rights. 1 While the right of suffrage and the right to hold public office or
employment are commonly regarded as political rights, 2 it must be noted that
there are other political rights 3 and that the pardon given to petitioner did not
expressly and in printers ink restore to petitioner the particular right to hold public
office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a
public office as a public trust, Articles 36 and 40-43 appropriately require a very
high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in
our statute books since 1930. I believe that they have been left intact by the
constitutional provisions on pardon, whether one refers to the 1935 Constitution
or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al.
collided with any provision or principle embodied in either of our prior
constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on,
however, to say (in page 13) that: the pardon granted to petitioner has resulted
in removing her disqualification from holding public employment but it cannot go
beyond that.

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code
have not been shown to be an unconstitutional restriction on the pardoning
power of the President. The limitation on the Presidents pardoning power, if
limitation it be, does not appear to be an unreasonably onerous one. Articles 36,
et al. merely require the President to become completely explicit if the pardon he
extends is intended to wipe out not merely the principal but also the accessory
penalty of disqualification from holding public office and from voting and to
restore the recipient of the pardon to the exercise of such fundamental political
rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out the
factual guilt of the recipient of the pardon. In other words, the mere grant of a
pardon to a public officer or employee who has been unfaithful to the public trust
and sentenced to disqualification from voting and from holding such office, does
not create the presumption that the recipient of the pardon has thereby suddenly
become morally eligible once more to exercise the right to vote and to hold public
office.

In my view, the pardon extended to petitioner was ineffective to restore to her the
right to hold public office and on this ground, I vote to DENY the Petition for
Review and to AFFIRM the assailed Resolution of the then Executive Secretary
Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.



Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the
majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City.
Together with three (3) other accused, she was charged before the
Sandiganbayan with the complex crime of Estafa through falsification of public
documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
correccional, as maximum, and to pay a fine of P 3,500.00. They were also
ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the
same. Petitioner then filed a motion for reconsideration but while said motion was
pending, President Ferdinand E. Marcos extended to her on 17 December 1984
an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City
Treasurer of Calbayog, the Ministry of Finance and the Office of the President,
asked that she be allowed to re-assume her former office, as of 1 August 1982
(the date of her preventive suspension), that she be paid her back salaries for the
entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioners request for
automatic reinstatement as well as her other claims, because of which denial,
this petition for review on certiorari was filed before the Court seeking the setting
aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted
an absolute pardon by the President, she is entitled to reinstatement to her
former position without need of a new appointment, and to the other reliefs
prayed for.

There can be no dispute that the pardon extinguished petitioners criminal
liability. At the same time, Art. 36 of the Revised Penal Code categorically covers
the effects of a pardon on the pardoneds right to hold office, suffrage and on his
civil liability. It states:

ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right
to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind,
clear that the pardon extended by the President to the petitioner did not per se
entitle her to again hold public office (including therefore the office of Assistant
Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil
liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner
was granted an absolute and unconditional pardon and restored to full civil and
political rights, yet, nothing therein expressly provides that the right to hold
public office was thereby restored to the petitioner. In view of the express
exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my considered
opinion that, to the extent that the pardon granted to the petitioner did not
expressly restore the right to hold public office as an effect of such pardon, that
right must be kept away from the petitioner.

It is a recognized principle in public law-hopefully to be honored more in its
compliance rather than in its breach that a public office is a public trust. The
restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be
left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would not be
asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that
an absolute pardon, without qualification, restores full civil rights which have
been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in
order, so that an absolute pardon to work a restoration of the right to hold public
office must expressly so state, in order to give substance and meaning to the
sound provisions of Article 36 of the Revised Penal Code, particularly in the light
of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief
Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the
same time, I would add a few brief statements, basically for my own clarification.
Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. A pardon shall not work the registration of the
right to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times
by the Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of perpetual
absolute disqualification and that of civil interdiction during thirty years following
the date of sentence, unless such accessory penalties have been expressly
remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. Their accessory
penalties. The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the sentence
as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.

Article 42. Prision mayor Its accessory penalties. The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

Article 43. Prision correccional Its accessory penalties. The penalty of prision
correccional shall carry with it that of suspension from public office, from the right
to follow a profession or calling, and that of perpetual special disqualification from
the right of suffrage, if the duration of said imprisonment shall exceed eighteen
months. The offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the
complex crime of estafa through falsification of public documents, included the
accessory penalties of temporary absolute disqualification from public office or
employment and perpetual special disqualification from the right of suffrage. The
17 December 1984 pardon extended to petitioner in the instant case was written
on a standard printed form which states in printed words that it was an absolute
and unconditional pardon [which] restored [petitioner] to full civil and political
rights. 1 While the right of suffrage and the right to hold public office or
employment are commonly regarded as political rights, 2 it must be noted that
there are other political rights 3 and that the pardon given to petitioner did not
expressly and in printers ink restore to petitioner the particular right to hold public
office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a
public office as a public trust, Articles 36 and 40-43 appropriately require a very
high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in
our statute books since 1930. I believe that they have been left intact by the
constitutional provisions on pardon, whether one refers to the 1935 Constitution
or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al.
collided with any provision or principle embodied in either of our prior
constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on,
however, to say (in page 13) that: the pardon granted to petitioner has resulted
in removing her disqualification from holding public employment but it cannot go
beyond that.

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code
have not been shown to be an unconstitutional restriction on the pardoning
power of the President. The limitation on the Presidents pardoning power, if
limitation it be, does not appear to be an unreasonably onerous one. Articles 36,
et al. merely require the President to become completely explicit if the pardon he
extends is intended to wipe out not merely the principal but also the accessory
penalty of disqualification from holding public office and from voting and to
restore the recipient of the pardon to the exercise of such fundamental political
rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out the
factual guilt of the recipient of the pardon. In other words, the mere grant of a
pardon to a public officer or employee who has been unfaithful to the public trust
and sentenced to disqualification from voting and from holding such office, does
not create the presumption that the recipient of the pardon has thereby suddenly
become morally eligible once more to exercise the right to vote and to hold public
office.

In my view, the pardon extended to petitioner was ineffective to restore to her the
right to hold public office and on this ground, I vote to DENY the Petition for
Review and to AFFIRM the assailed Resolution of the then Executive Secretary
Fulgencio S. Factoran, Jr.
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA),
DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN
ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN,
VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL
SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98,
QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.

CORTES, J :
Primarily, the issue raised in this petition is whether or not the Regional Trial
Court can enjoin the Social Security System Employees Association (SSSEA)
from striking and order the striking employees to return to work. Collaterally, it is
whether or not employees of the Social Security System (SSS) have the
right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a
complaint for damages with a prayer for a writ of preliminary injunction against
petitioners, alleging that on June 9, 1987, the officers and members of SSSEA
staged an illegal strike and baricaded the entrances to the SSS Building,
preventing non-striking employees from reporting for work and SSS members
from transacting business with the SSS; that the strike was reported to the Public
Sector Labor - Management Council, which ordered the strikers to return to work;
that the strikers refused to return to work; and that the SSS suffered damages as
a result of the strike. The complaint prayed that a writ of preliminary injunction be
issued to enjoin the strike and that the strikers be ordered to return to work; that
the defendants (petitioners herein) be ordered to pay damages; and that the
strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the
union's demands, which included: implementation of the provisions of the old
SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues;
payment of accrued overtime pay, night differential pay and holiday pay;
conversion of temporary or contractual employees with six (6) months or more of
service into regular and permanent employees and their entitlement to the same
salaries, allowances and benefits given to other regular employees of the SSS;
and payment of the children's allowance of P30.00, and after the SSS deducted
certain amounts from the salaries of the employees and allegedly committed acts
of discrimination and unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending
resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In
the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of
jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS
filed an opposition, reiterating its prayer for the issuance of a writ of injunction
[Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo
denied the motion to dismiss and converted the restraining order into an
injunction upon posting of a bond, after finding that the strike was illegal [Rollo,
pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order
was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for
certiorari and prohibition with preliminary injunction before this Court. Their
petition was docketed as G.R. No. 79577. In a resolution dated October 21,
1987, the Court, through the Third Division, resolved to refer the case to the
Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during
its pendency the Court of Appeals on March 9,1988 promulgated its decision on
the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of
Appeals' decision. In the meantime, the Court on June 29,1988 denied the
motion for reconsideration in G.R. No. 97577 for being moot and academic.
Petitioners' motion to recall the decision of the Court of Appeals was also denied
in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141-
143]. Hence, the instant petition to review the decision of the Court of Appeals
[Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary
restraining order enjoining the petitioners from staging another strike or from
pursuing the notice of strike they filed with the Department of Labor and
Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-
152].
The Court, taking the comment as answer, and noting the reply and
supplemental reply filed by petitioners, considered the issues joined and the case
submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction
to hear the case initiated by the SSS and to issue the restraining order and the
writ of preliminary injunction, as jurisdiction lay with the Department of Labor and
Employment or the National Labor Relations Commission, since the case
involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the
employees of the SSS are covered by civil service laws and rules and
regulations, not the Labor Code, therefore they do not have the right to strike.
Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the
Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction
filed by petitioners, the Court of Appeals held that since the employees of the
SSS, are government employees, they are not allowed to strike, and may be
enjoined by the Regional Trial Court, which had jurisdiction over the SSS'
complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or
not the Court of Appeals erred in finding that the Regional Trial Court did not act
without or in excess of jurisdiction when it took cognizance of the case and
enjoined the strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the
SSS and to enjoin the strikers from continuing with the strike and to order them to
return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights,
provides that the State "shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and
employees, including those in the public sector, to strike. But the Constitution
itself fails to expressly confirm this impression, for in the Sub-Article on the Civil
Service Commission, it provides, after defining the scope of the civil service as
"all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters,"
that "[t]he right to self-organization shall not be denied to government
employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also
provides that "[tlhe right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no
question that the Constitution recognizes the right of government employees to
organize, it is silent as to whether such recognition also includes the right to
strike.
Resort to the intent of the framers of the organic law becomes helpful in
understanding the meaning of these provisions. A reading of the proceedings of
the Constitutional Commission that drafted the 1987 Constitution would show
that in recognizing the right of government employees to organize, the
commissioners intended to limit the right to the formation of unions or
associations only, without including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that
"[tlhe right to self-organization shall not be denied to government employees"
[Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by
Commissioner Ambrosio B. Padilla, Vice-President of the Commission,
explained:
MR. LERUM. I think what I will try to say will not take that long. When we
proposed this amendment providing for self-organization of government
employees, it does not mean that because they have the right to organize, they
also have the right to strike. That is a different matter. We are only talking about
organizing, uniting as a union. With regard to the right to strike, everyone will
remember that in the Bill of Rights, there is a provision that the right to form
associations or societies whose purpose is not contrary to law shall not be
abridged. Now then, if the purpose of the state is to prohibit the strikes
coming from employees exercising government functions, that could be
done because the moment that is prohibited, then the union which will go
on strike will be an illegal union. And that provision is carried in Republic Act
875. In Republic Act 875, workers, including those from the government-owned
and controlled, are allowed to organize but they are prohibited from striking. So,
the fear of our honorable Vice- President is unfounded. It does not mean that
because we approve this resolution, it carries with it the right to strike. That is a
different matter. As a matter of fact, that subject is now being discussed in the
Committee on Social Justice because we are trying to find a solution to this
problem. We know that this problem exist; that the moment we allow anybody in
the government to strike, then what will happen if the members of the Armed
Forces will go on strike? What will happen to those people trying to protect us?
So that is a matter of discussion in the Committee on Social Justice. But, I
repeat, the right to form an organization does not carry with it the right to
strike. [Record of the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was
repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by
employees in the Government, including instrumentalities exercising
governmental functions, but excluding entities entrusted with proprietary
functions:
.Sec. 11. Prohibition Against Strikes in the Government. The terms and
conditions of employment in the Government, including any political subdivision
or instrumentality thereof, are governed by law and it is declared to be the policy
of this Act that employees therein shall not strike for the purpose of securing
changes or modification in their terms and conditions of employment. Such
employees may belong to any labor organization which does not impose
the obligation to strike or to join in strike: Provided, however, That this
section shall apply only to employees employed in governmental functions
and not those employed in proprietary functions of the Government
including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it
recognized the right of employees of government corporations established under
the Corporation Code to organize and bargain collectively and those in the civil
service to "form organizations for purposes not contrary to law" [Art. 244, before
its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he
terms and conditions of employment of all government employees, including
employees of government owned and controlled corporations, shall be governed
by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably,
the Labor Code is silent as to whether or not government employees may strike,
for such are excluded from its coverage [Ibid]. But then the Civil Service Decree
[P.D. No. 807], is equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of
government employees to organize, the President issued E.O. No. 180 which
provides guidelines for the exercise of the right to organize of government
employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and
rules governing concerted activities and strikes in the government service shall
be observed, subject to any legislation that may be enacted by Congress." The
President was apparently referring to Memorandum Circular No. 6, s. 1987 of the
Civil Service Commission under date April 21, 1987 which, "prior to the
enactment by Congress of applicable laws concerning strike by government
employees ... enjoins under pain of administrative sanctions, all government
officers and employees from staging strikes, demonstrations, mass leaves, walk-
outs and other forms of mass action which will result in temporary stoppage or
disruption of public service." The air was thus cleared of the confusion. At
present, in the absence of any legislation allowing government employees to
strike, recognizing their right to do so, or regulating the exercise of the right, they
are prohibited from striking, by express provision of Memorandum Circular No. 6
and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity
of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the
1987 Constitution "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned
or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also
Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated
as "government employees"] and that the SSS is one such government-
controlled corporation with an original charter, having been created under
R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC,
G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil
Service Commission's memorandum prohibiting strikes. This being the case, the
strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of
Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is
relevant as it furnishes the rationale for distinguishing between workers in the
private sector and government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and
conditions of employment in the Government, including any political subdivision
or instrumentality thereof are governed by law" (Section 11, the Industrial Peace
Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442,
as amended). Since the terms and conditions of government employment
are fixed by law, government workers cannot use the same weapons
employed by workers in the private sector to secure concessions from
their employers. The principle behind labor unionism in private industry is
that industrial peace cannot be secured through compulsion by law.
Relations between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws and other
labor and welfare legislation, the terms and conditions of employment in the
unionized private sector are settled through the process of collective bargaining.
In government employment, however, it is the legislature and, where
properly given delegated power, the administrative heads of government
which fix the terms and conditions of employment. And this is effected
through statutes or administrative circulars, rules, and regulations, not
through collective bargaining agreements. [At p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his
position paper submitted to the 1971 Constitutional Convention, and quoted with
approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the
public employer and the peculiar character of the public service, it must
necessarily regard the right to strike given to unions in private industry as not
applying to public employees and civil service employees. It has been stated that
the Government, in contrast to the private employer, protects the interest of all
people in the public service, and that accordingly, such conflicting interests as
are present in private labor relations could not exist in the relations between
government and those whom they employ. [At pp. 16-17; also quoted in National
Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA
172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize
of government employees, while clinging to the same philosophy, has, however,
relaxed the rule to allow negotiation where the terms and conditions of
employment involved are not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof,
except those that are fixed by law, may be the subject of negotiations between
duly recognized employees' organizations and appropriate government
authorities.
The same executive order has also provided for the general mechanism for the
settlement of labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and
cases involving government employees. In case any dispute remains unresolved
after exhausting all the available remedies under existing laws and procedures,
the parties may jointly refer the dispute to the [Public Sector Labor- Management]
Council for appropriate action.
Government employees may, therefore, through their unions or associations,
either petition the Congress for the betterment of the terms and conditions of
employment which are within the ambit of legislation or negotiate with the
appropriate government agencies for the improvement of those which are not
fixed by law. If there be any unresolved grievances, the dispute may be referred
to the Public Sector Labor - Management Council for appropriate action. But
employees in the civil service may not resort to strikes, walk-outs and other
temporary work stoppages, like workers in the private sector, to pressure the
Govemment to accede to their demands. As now provided under Sec. 4, Rule III
of the Rules and Regulations to Govern the Exercise of the Right of Government-
Employees to Self- Organization, which took effect after the instant dispute
arose, "[t]he terms and conditions of employment in the government, including
any political subdivision or instrumentality thereof and government- owned and
controlled corporations with original charters are governed by law and employees
therein shall not strike for the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union
being prohibited by law, an injunction may be issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the
exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no
jurisdiction to issue a writ of injunction enjoining the continuance of the strike.
The Labor Code itself provides that terms and conditions of employment of
government employees shall be governed by the Civil Service Law, rules and
regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector
Labor - Management Council with jurisdiction over unresolved labor disputes
involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction
over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise
of its general jurisdiction under B.P. Blg. 129, as amended, from assuming
jurisdiction over the SSS's complaint for damages and issuing the injunctive writ
prayed for therein. Unlike the NLRC, the Public Sector Labor - Management
Council has not been granted by law authority to issue writs of injunction in labor
disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC,
that has jurisdiction over the instant labor dispute, resort to the general courts of
law for the issuance of a writ of injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for
in fact it had proceeded with caution. Thus, after issuing a writ of injunction
enjoining the continuance of the strike to prevent any further disruption of public
service, the respondent judge, in the same order, admonished the parties to refer
the unresolved controversies emanating from their employer- employee
relationship to the Public Sector Labor - Management Council for appropriate
action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and
reiterated in their reply and supplemental reply, petitioners allege that the SSS
unlawfully withheld bonuses and benefits due the individual petitioners and they
pray that the Court issue a writ of preliminary prohibitive and mandatory
injunction to restrain the SSS and its agents from withholding payment thereof
and to compel the SSS to pay them. In their supplemental reply, petitioners
annexed an order of the Civil Service Commission, dated May 5, 1989, which
ruled that the officers of the SSSEA who are not preventively suspended and
who are reporting for work pending the resolution of the administrative cases
against them are entitled to their salaries, year-end bonuses and other fringe
benefits and affirmed the previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view
that petitioners' remedy is not to petition this Court to issue an injunction, but to
cause the execution of the aforesaid order, if it has already become final.
WHEREFORE, no reversible error having been committed by the Court of
Appeals, the instant petition for review is hereby DENIED and the decision of the
appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED.
Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated
December 13,1988 is DENIED.
SO ORDERED.
G.R. No. L-5156 March 11, 1954
CARMEN FESTEJO, demandante-apelante, vs. ISAIAS FERNANDO,
Director de Obras Publicas, demandado-apelado.
D. Eloy B. Bello en representacion de la apelante. El Procurador General Sr.
Pompeyo Diaz y el Procurador Sr. Antonio A. Torres en representacion del
apelado.
DIOKNO, J .:
Carmen Festejo, duea de unos terrenos azucareros, de un total de unas 9
hectareas y media de superfice, demando a "Isaias Fernando Director, Bureau of
public Works, que como tal Director de Obras Publicas tiene a su cargo los
sistemas y proyectos de irrigacion y es el funcionario responsable de la
construccion de los sistemas de irrigacion en el pais," alegando que
The defendant, as Director of the Bureau of Public Works, without authority
obtained first from the Court of First Instance of Ilocos Sur, without obtaining first
a right of way, and without the consent and knowledge of the plaintiff, and
against her express objection unlawfully took possession of portions of the three
parcels of land described above, and caused an irrigation canal to be constructed
on the portion of the three parcels of land on or about the month of February
1951 the aggregate area being 24,179 square meters to the damage and
prejudice of the plaintiff. ----- R. on A., p. 3.
causando a ella variados daos y perjuicios. Pidio, en su consecuencia,
sentencia condenando el demandado:
. . . to return or cause to be returned the possession of the portions of land
unlawfully occupied and appropriated in the aggregate area of 24,179 square
meters and to return the land to its former condition under the expenses of the
defendant. . . .
In the remote event that the portions of land unlawfully occupied and
appropriated can not be returned to the plaintiff, then to order the defendant to
pay to the plaintiff the sum of P19,343.20 as value of the portions totalling an
area of 24,179 square meters; ---- R. on A., p. 5.
y ademas a pagar P9,756.19 de daos y P5,000 de honorarios de abogado, con
las costas R. on A., pp. 5-6.
El demandado, por medio del Procurador General, presento mocion de
sobreseimiento de la demanda por el fundamento de que el Juzgado no tiene
jurisdiccion para dictar sentencia valida contra el, toda vez que judicialmente la
reclamacion es contra la Republica de Filipinas, y esta no ha presentado su
consentimiento a la demanda. El Juzgado inferior estimo la mocion y sobreseyo
la demanda sin perjuicio y sin costas.
En apelacion, la demandante sostiene que fue un error considerar la demanda
como una contra la Republica y sobreseer en su virtud la demanda.
La mocion contra "Isaias Fernando, Director de Obras Publicas, encargado y
responsable de la construccion de los sistemas de irrigacion en Filipinas" es una
dirigida personalmente contra el, por actos que asumio ejecutar en su concepto
oficial. La ley no le exime de responsabilidad por las extralimitaciones que
cometa o haga cometer en el desempeo de sus funciones oficiales. Un caso
semejante es el de Nelson vs. Bobcock (1933) 18 minn. 584, NW 49, 90 ALR
1472. Alli el Comisionado de Carreteras, al mejorar un trozo de la carretera
ocupo o se apropio de terrenos contiguos al derecho de paso. El Tribunal
Supremo del Estado declaro que es personalmente responsable al dueo de los
daos causados. Declaro ademas que la ratificacion de lo que hicieron sus
subordinados era equivalente a una orden a los mismos. He aqui lo dijo el
Tribunal.
We think the evidence and conceded facts permitted the jury in finding that
in the trespass on plaintiff's land defendant committed acts outside the
scope of his authority. When he went outside the boundaries of the right of way
upon plaintiff's land and damaged it or destroyed its former condition an
dusefulness, he must be held to have designedly departed from the duties
imposed on him by law. There can be no claim that he thus invaded plaintiff's
land southeasterly of the right of way innocently. Surveys clearly marked the
limits of the land appropriated for the right of way of this trunk highway before
construction began. . . .
"Ratification may be equivalent to command, and cooperation may be inferred
from acquiescence where there is power to restrain." It is unnecessary to
consider other cases cited, . . ., for as before suggested, the jury could find or
infer that, in so far as there was actual trespass by appropriation of plaintiff's land
as a dumping place for the rock to be removed from the additional appropriated
right of way, defendant planned, approved, and ratified what was done by his
subordinates. Nelson vs. Bobcock, 90 A.L.R., 1472, 1476, 1477.
La doctrina sobre la responsabilidad civil de los funcionarios en casos parecidos
se resume como sigue:
Ordinarily the officer or employee committing the tort is personally liable therefor,
and may be sued as any other citizen and held answerable for whatever injury or
damage results from his tortious act. 49 Am. Jur. 289.
. . . If an officer, even while acting under color of his office, exceeds the
power conferred on him by law, he cannot shelter himself under the plea
that he is a public agent. 43 Am. Jur. 86.
It is a general rule that an officer-executive, administrative quasi-judicial,
ministerial, or otherwise who acts outside the scope of his jurisdiction and without
authorization of law may thereby render himself amenable to personal liability in
a civil suit. If he exceed the power conferred on him by law, he cannot shelter
himself by the plea that he is a public agent acting under the color of his office,
and not personally. In the eye of the law, his acts then are wholly without
authority. 43 Am. Jur. 89-90.
El articulo 32 del Codigo Civil dice a su vez:
ART. 32. Any public officer or emplyee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
x x x x x x x x x
(6) The right against deprivation of property without due process of law;
x x x x x x x x x
In any of the cases referred to this article, whether or not the defendant's acts or
omission constitutes a criminal offense, the aggrieved party has a right ot
commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a preponderance of
evidence.
The inmdemnity shall include moral damages Exemplary damages may also be
adjudicated.
Veanse tambien Lung vs. Aldanese, 45 Phil., 784; Syquia vs. Almeda, No. L-
1648, Agosto 17, 1947; Marquez vs. Nelson, No. L-2412, Septiembre 1950.
Se revoca la orden apelada y se ordena la continuacion de la tramitacion de la
demanda conforme proveen los reglamentos. Sin especial pronunciamiento en
cuanto a las costas. Asi se ordena.
G.R. No. L-26803 October 14, 1975
AMERICAN TOBACCO COMPANY, CARNATION COMPANY, CURTISS
CANDY COMPANY, CUDAHY PACKING CO., CLUETT, PEABODY & CO.,
INC., CANNONMILLS COMPANY, FORMICA CORPORATION,
GENERALMOTORS CORPORATION, INTERNATIONAL LATEX
CORPORATION, KAYSER-ROTH CORPORATION, M and R DIETETIC
LABORATORIES, INC., OLIN MATHIESON, PARFUM CIRO, INC., PROCTER
and GAMBLE COMPANY, PROCTER and GAMBLE PHILIPPINE
MANUFACTURING CORPORATION, PARFUMS PORVIL DENTRIFICES DU
DOCTEUR PIERRE REUNIS SOCIETE ANONYME, R.J. REYNOLDS
TOBACCO COMPANY, SWIFT AND COMPANY, STERLING PRODUCTS
INTERNATIONAL, THE CLOROX COMPANY, WARNER LAMBERT
PHARMACEUTICALS COMPANY and ZENITH RADIO CORPORATION,
petitioners, vs. THE DIRECTOR OF PATENTS, ATTYS. AMANDO L.
MARQUEZ, TEOFILO P. VELASCO, RUSTICO A. CASIA and HECTOR D.
BUENALUZ, respondents.
Lichauco, Picazo and Agcaoili for petitioners.
Office of the Solicitor General for respondents.

ANTONIO, J .:
In this petition for mandamus with preliminary injunction, petitioners challenge the
validity of Rule 168 of the "Revised Rules of Practice before the Philippine Patent
Office in Trademark Cases" as amended, authorizing the Director of Patents to
designate any ranking official of said office to hear "inter partes" proceedings.
Said Rule likewise provides that "all judgments determining the merits of the case
shall be personally and directly prepared by the Director and signed by him."
These proceedings refer to the hearing of opposition to the registration of a mark
or trade name, interference proceeding instituted for the purpose of determining
the question of priority of adoption and use of a trade-mark, trade name or
service-mark, and cancellation of registration of a trade-mark or trade name
pending at the Patent Office.
Petitioners are parties, respectively, in the following opposition, interference and
cancellation proceedings in said Office: Inter Partes Cases Nos. 157, 392, 896,
282, 247, 354, 246,332, 398, 325, 374, 175, 297, 256, 267, 111, 400, 324, 114,
159, 346, and 404.
Under the Trade-mark Law (Republic Act No. 166 ), the Director of Patents is
vested with jurisdiction over the above-mentioned cases. Likewise, the Rules of
Practice in Trade-mark Cases contains a similar provision, thus:
168. Original jurisdiction over inter partes proceeding. the Director of Patents
shall have original jurisdiction over inter partes proceedings. In the event that the
Patent Office should be provided with an Examiner of Interferences, this
Examiner shall have the original jurisdiction over these cases, instead of the
Director. In the case that the Examiner of Interferences takes over the original
jurisdiction over inter partes proceedings, his final decision subject to appeal to
the Director of Patents within three months of the receipt of notice of decisions.
Such appeals shall be governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15
and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable
and appropriate, and the appeal fee shall be P25.00.
The Rules of Practice in Trade-mark Cases were drafted and promulgated by the
Director of Patents and approved by the then Secretary of Agriculture and
Commerce.. 1
Subsequently, the Director of Patents, with the approval of the Secretary of
Agriculture and Commerce, amended the afore-quoted Rule 168 to read as
follows:
168. Original Jurisdiction over inter partes proceedings. The Director of
Patents shall have original jurisdiction over inter partes proceedings, [In the event
that the Patent Office is provided with an Examiner of Interferences, this
Examiner shall then have the original jurisdiction over these cases, instead of the
Director. In the case that the Examiner of Interferences takes over the original
jurisdiction over inter partes proceedings, his final decisions shall be subject to
appeal to the Director of Patents within three months of the receipt of notice
decision. Such appeals shall be governed by Sections 2, 3, 4, 6, 7, 8,10, 11, 12,
13, 14, 15, and 22 of Rule 41 of the Rules of Court insofar as said sections are
applicable and appropriate, and the appeal fee shall be [P25.00.] Such inter
partes proceedings in the Philippine Patent Office under this Title shall be heard
before the Director of Patents, any hearing officer, or any ranking official
designated by the Director, but all judgments determining the merits of the case
shall be personally and directly prepared by the Director and signed by him.
(Emphasis supplied.)
In accordance with the amended Rule, the Director of Patents delegated the
hearing of petitioners' cases to hearing officers, specifically, Attys. Amando
Marquez, Teofilo Velasco, Rustico Casia and Hector Buenaluz, the other
respondents herein.
Petitioners filed their objections to the authority of the hearing officers to
hear their cases, alleging that the amendment of the Rule is illegal and void
because under the law the Director must personally hear and decide inter
partes cases. Said objections were overruled by the Director of Patents, hence,
the present petition for mandamus, to compel The Director of Patents to
personally hear the cases of petitioners, in lieu of the hearing officers.
It would take an extremely narrow reading of the powers of the Director of
Patents under the general law
2
and Republic Acts Nos. 165
3
and 166
3
* to
sustain the contention of petitioners. Under section 3 of RA 165, the Director of
Patents is "empowered to obtain the assistance of technical, scientific or other
qualified officers or employees of other departments, bureaus, offices, agencies
and instrumentalities of the Government, including corporations owned,
controlled or operated by the Government, when deemed necessary in the
consideration of any matter submitted to the Office relative to the enforcement of
the provisions" of said Act. Section 78 of the same Act also empowers "the
Director, subject to the approval of the Department Head," to "promulgate the
necessary rules and regulations, not inconsistent with law, for the conduct of all
business in the Patent Office." The aforecited statutory authority undoubtedly
also applies to the administration and enforcement of the Trade-mark Law
(Republic Act No. 166).
It has been held that power-conferred upon an administrative agency to which
the administration of a statute is entrusted to issue such regulations and orders
as may be deemed necessary or proper in order to carry out its purposes and
provisions maybe an adequate source of authority to delegate a particular
function, unless by express provisions of the Act or by implication it has been
withheld.
4
There is no provision either in Republic Act No. 165 or 166 negativing
the existence of such authority, so far as the designation of hearing examiners is
concerned. Nor can the absence of such authority be fairly inferred from
contemporaneous and consistent Executive interpretation of the Act.
The nature of the power and authority entrusted to The Director of Patents
suggests that the aforecited laws (Republic Act No. 166, in relation to Republic
Act No. 165) should be construed so as to give the aforesaid official the
administrative flexibility necessary for the prompt and expeditious discharge of
his duties in the administration of said laws. As such officer, he is required,
among others, to determine the question of priority in patent interference
proceedings,
5
decide applications for reinstatement of a lapsed patent,
6

cancellations of patents under Republic Act No. 165,
7
inter partes proceedings
such as oppositions,
8
claims of interference, 9 cancellation cases under the
Trade-mark Law
10
and other matters in connection with the enforcement of the
aforesaid laws. It could hardly be expected, in view of the magnitude of his
responsibility, to require him to hear personally each and every case pending in
his Office. This would leave him little time to attend to his other duties.
11
For him
to do so and at the same time attend personally to the discharge of every other
duty or responsibility imposed upon his Office by law would not further the
development of orderly and responsible administration. The reduction of existing
delays in regulating agencies requires the elimination of needless work at top
levels. Unnecessary and unimportant details often occupy far too much of the
time and energy of the heads of these agencies and prevent full and expeditious
consideration of the more important issues. the remedy is a far wider range of
delegations to subordinate officers. This sub-delegation of power has been
justified by "sound principles of organization" which demand that "those at
the top be able to concentrate their attention upon the larger and more
important questions of policy and practice, and their time be freed, so far
as possible, from the consideration of the smaller and far less important
matters of detail."
12

Thus, it is well-settled that while the power to decide resides solely in the
administrative agency vested by law, this does not preclude a delegation of
the power to hold a hearing on the basis of which the decision of the
administrative agency will be made.
13

The rule that requires an administrative officer to exercise his own judgment and
discretion does not preclude him from utilizing, as a matter of practical
administrative procedure, the aid of subordinates to investigate and report to him
the facts, on the basis of which the officer makes his decisions.
14
It is sufficient
that the judgment and discretion finally exercised are those of the officer
authorized by law. Neither does due process of law nor the requirements of fair
hearing require that the actual taking of testimony be before the same officer who
will make the decision in the case. As long as a party is not deprived of his right
to present his own case and submit evidence in support thereof, and the decision
is supported by the evidence in the record, there is no question that the
requirements of due process and fair trial are fully met.
15
In short, there is no
abnegation of responsibility on the part of the officer concerned as the actual
decision remains with and is made by said officer.
16
It is, however, required that
to "give the substance of a hearing, which is for the purpose of making
determinations upon evidence the officer who makes the determinations must
consider and appraise the evidence which justifies them."
17

In the case at bar, while the hearing officer may make preliminary rulings on
the myriad of questions raised at the hearings of these cases, the ultimate
decision on the merits of all the issues and questions involved is left to the
Director of Patents. Apart from the circumstance that the point involved is
procedural and not jurisdictional, petitioners have not shown in what manner they
have been prejudiced by the proceedings.
Moreover, as the Solicitor General Antonio P. Barredo, now a Member of this
Court has correctly pointed out, the repeated appropriations by Congress for
hearing officers of the Philippine Patent Office form 1963 to 1968
18
not only
confirms the departmental construction of the statute, but also constitutes a
ratification of the act of the Director of Patents and the Department Head as
agents of Congress in the administration of the law.
19

WHEREFORE, the instant petition is hereby dismissed, with costs against
petitioners.
[G.R. No. 139792. November 22, 2000]
ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF
APPEALS, METROPOLITAN AUTHORITY, now known as
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE
CIVIL SERVICE COMMISSION, respondents.
D E C I S I O N
DAVIDE, JR., C.J .:
In this petition for review on certiorari petitioner assails the decision of 19
August 1999 of the Court of Appeals[1] in CA-G.R. SP No. 48301, which held
that petitioners separation pay under Section 11 of R.A. No. 7924 should be
limited to the number of years of his service in the Metropolitan Manila Authority
(MMA) only, excluding his years of service as judge of the Metropolitan Trial
Court (MeTC) of Quezon City for which he has already been given retirement
gratuity and pension.
The undisputed facts are as follows:
On 18 January 1983, petitioner was appointed Judge of the MeTC of
Quezon City, and he thereafter assumed office. After the military-backed EDSA
revolt, petitioner was reappointed to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary under R.A.
No. 910,[2] as amended, and received his retirement gratuity under the law for
his entire years in the government service; and five years thereafter he has been
regularly receiving a monthly pension.
On 2 December 1993, petitioner re-entered the government service. He
was appointed Director III of the Traffic Operation Center of the MMA. His
appointment was approved by the Civil Service Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the
MMA and renamed it as Metropolitan Manila Development Authority (MMDA).
Section 11 thereof reads:
Section 11. Transitory Provisions. To prevent disruption in the delivery of
basic urban services pending the full implementation of the MMDAs
organizational structure and staffing pattern, all officials and employees of the
interim MMA shall continue to exercise their duties and functions and receive
their salaries and allowances until they shall have been given notice of change of
duties and functions, and of being transferred to another office or position.
. . .
The civil service laws, rules and regulations pertinent to the displacement of
personnel affected by this Act shall be strictly enforced. The national
government shall provide such amounts as may be necessary to pay the benefits
accruing to displaced employees at the rate of one and one-fourth (1) months
salary for every year of service: Provided, That, if qualified for retirement under
existing retirement laws, said employees may opt to receive the benefits
thereunder.
On 16 May 1996, the President of the Philippines issued Memorandum
Order No. 372 approving the Rules and Regulations Implementing R.A. No.
7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996,
which, inter alia, authorized the payment of separation benefits to the officials
and employees of the former MMA who would be separated as a result of the
implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to petitioner
informing him that in view of his voluntary option to be separated from the
service his services would automatically cease effective at the close of
office hours on 15 September 1996, and that he would be entitled to
separation benefits equivalent to one and one-fourth (1) monthly salary
for every year of service as provided under Section 11 of the MMDA Law.
In view of some doubt or confusion as to the extent of his separation
benefits, petitioner submitted a Position Paper wherein he asserted that
since the retirement gratuity he received under R.A. No. 910, as amended,
is not an additional or double compensation, all the years of his
government service, including those years in the Judiciary, should be
credited in the computation of his separation benefits under R.A. No. 7924.
The Assistant Manager for Finance of the MMDA referred the Position Paper to
the Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed
down an opinion that the payment of petitioners separation pay must be in
accordance with Civil Service Resolution No. 92-063, pertinent portions of which
read:
[T]he payment of separation/[retirement] benefits cannot be subject to the
prohibition against the [sic] double compensation in cases when officers and
employees who were previously granted said benefits are rehired or reemployed
in another government Agency or Office. Thus, there is no need for separated
employees to refund the separation/retirement benefits they received when
subsequently reemployed in another government agency or office.
This being so, while an employee who was paid separation/retirement
benefits is not required to refund the same once reemployed in the government
service, as aforestated, for reasons of equity however, it would be proper and
logical that said separation/retirement benefits should nevertheless be
deducted from the retirement/[separation] pay to be received by the
employee concerned. Moreover, in this instance, the employee concerned
has the option either to refund his separation/retirement benefits and claim
his gross retirement/separation pay without any deduction corresponding
to his separation pay received, or not [to] refund his separation/retirement
pay but suffer a deduction of his retirement/separation gratuity for the total
amount representing his previous separation/retirement pay received.
His motion for reconsideration having been denied, petitioner elevated the
opinion of Director Acebedo to the CSC.
On 21 October 1997, the CSC promulgated Resolution No. 97-4266
affirming the opinion of Director Acebedo and dismissing petitioners appeal.
Citing Chaves v. Mathay,[3] it held that petitioner cannot be paid retirement
benefits twice one under R.A. No. 910, as amended, and another under R.A.
No. 7924 for the same services he rendered as MeTC Judge. He can only
exercise one of two options in the computation of his separation pay under R.A.
7924. These options are (1) to refund the gratuity he received under R.A. No.
910, as amended, after he retired from the MeTC and get the full separation pay
for his entire years in the government, that is 9 years and 2 months with the
MeTC plus two (2) years and eight (8) months for his services as Director III in
the defunct MMA, at the rate of one and one-fourth salary for every year of
service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain
the gratuity pay he received for his services as MeTC Judge but an equivalent
amount shall be deducted from the separation benefits due from the former MMA
for his entire government service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying
petitioners motion for reconsideration. Accordingly, petitioner filed with the Court
of Appeals a petition to set aside these Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision, now
challenged in this case. It held that the CSC was correct in dismissing
petitioners appeal from the opinion of Director Acebedo. It ratiocinated as
follows:
There is no specific rule of law which applies to petitioners case. Nevertheless,
the Court finds it equitable to deny his claim for payment of separation pay at the
rate of one and one-fourth (1) months salary for every year of his service in
government, that is, inclusive of the number of years he served as Judge of the
Metropolitan Trial Court of Manila [sic].
Petitioner already received and is continually receiving gratuity for his years of
service as a Metropolitan Trial Court Judge. Equity dictates that he should no
longer be allowed to receive further gratuity for said years of service in the guise
of separation pay.
Suffice it to state that upon his retirement from his office as a Judge, petitioner
has already closed a chapter of his government service. The State has already
shown its gratitude for his services when he was paid retirement benefits under
Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards
[are] given to an employee who has given up the best years of his life to the
service of his country (Govt. Service Insurance System v. Civil Service
Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by awarding him
separation pay for his services as a director of the Metro Manila Authority (MMA),
another chapter of petitioners government service which has come to a close by
the reorganization of the MMA into the Metropolitan Manila Development
Authority.
The Court, in limiting the computation of petitioners separation pay to the
number of years of his service at the MMA, merely is implementing the ruling in
Chavez, Sr. vs. Mathay (37 SCRA 776), which ruling, if not actually in point, is
nevertheless applicable owing to its common-sense consideration. Said ruling
reads:
The common-sense consideration stated by Mr. Justice J.B.L. Reyes for the
Court in Espejo, that if a retiree is being credited with his years of service under
his first retirement in computing his gratuity under his second retirement, it is but
just that the retirement gratuity received by him under his first retirement should
also be charged to his account, manifestly govern the case at bar. It is but in
accordance with the rule consistently enunciated by the Court as in Anciano v.
Otadoy, affirming Borromeo, that claims for double retirement or pension such as
petitioners, would run roughshod over the well-settled rule that in the absence of
an express legal exception, pension and gratuity laws should be so
construed as to preclude any person from receiving double pension. (p.
780, underscoring supplied)
The case at bench is not, strictly speaking, about double pension. It is,
however, about the interpretation of a gratuity law, viz., Section 11 of
Republic Act No. 7924 which awards separation pay to those government
employees who were displaced by the reorganization of the MMA into the
MMDA, which should be construed to preclude a government employee from
receiving double gratuity for the same years of service.
We affirm the assailed judgment. We agree with the Court of Appeals and
the Civil Service Commission that for the purpose of computing or
determining petitioners separation pay under Section 11 of R.A. No. 7924,
his years of service in the Judiciary should be excluded and that his
separation pay should be solely confined to his services in the MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the
grant of separation pay at the rate of one and one-fourth (1) months of salary
for every year of service cannot by any stretch of logic or imagination be
interpreted to refer to the total length of service of an MMA employee in the
government, i.e., to include such service in the government outside the MMA.
Since it allows the grant of separation pay to employees who were to be
displaced thereby the separation pay can be based only on the length of service
in the MMA. The displacement amounted to an abolition of the office or position
of the displaced employees, such as that of petitioner. The rule is settled that
Congress may abolish public offices. Such a power is a consequent prerogative
of its power to create public offices.[4] However, the power to abolish is subject
to the condition that it be exercised in good faith.[5] The separation partook of the
nature of a disturbance of compensation; hence, the separation pay must
relate only to the employment thus affected.
Second, petitioner himself must have realized that Section 11 does not
allow the tacking in of his previous government service. If he were convinced
that it does he could have instead applied for retirement benefits, since by adding
his years of service in the MMA to his previous years of service in the
Government he could have retired under the third paragraph of Section 11, which
pertinently reads:
Provided, That, if qualified for retirement under existing retirement laws, said
employee may opt to receive the benefits thereunder.
Third, after the approval of his optional retirement on 1 April 1992, petitioner
was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five
years thereafter he has been receiving a monthly pension.
The petitioner cannot take refuge under the second paragraph of Section 8
of Article IX-B of the Constitution, which provides:
Pensions or gratuities shall not be considered as additional, double, or
indirect compensation.
This provision simply means that a retiree receiving pension or gratuity can
continue to receive such pension or gratuity even if he accepts another
government position to which another compensation is attached.[6]
Indeed, the retirement benefits which petitioner had received or has
been receiving under R.A. No. 910, as amended, do not constitute double
compensation. He could continue receiving the same even if after his
retirement he had been receiving salary from the defunct MMA as Director
III thereof. This is but just because said retirement benefits are rewards for
his services as MeTC Judge, while his salary was his compensation for his
services as Director III of the MMA.
However, to credit his years of service in the Judiciary in the computation of
his separation pay under R.A. No. 7924 notwithstanding the fact that he had
received or has been receiving the retirement benefits under R.A. No. 910, as
amended, would be to countenance double compensation for exactly the same
services, i.e., his services as MeTC Judge. Such would run counter to the policy
of this Court against double compensation for exactly the same services.[7] More
important, it would be in violation of the first paragraph of Section 8 of Article IX-B
of the Constitution, which proscribes additional, double, or indirect
compensation. Said provision reads:
No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law .
Section 11 of R.A. No. 7924 does not specifically authorize payment of
additional compensation for years of government service outside of the MMA.
WHEREFORE, finding no reversible error in the judgment appealed from,
the petition in this case is DENIED for want of merit, and the decision of 19
August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as Provincial Governor of
Batangas, petitioner, vs. CIVIL SERVICE COMMISSION and LORENZO
SANGALANG, respondents.
Provincial Attorney for respondent.
R E S O L U T I O N

DAVIDE, JR., J .:p
Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a
verified complaint with the Civil Service Commission to denounce a violation by
an appointing authority of the Civil Service Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batangas, upon
assuming office on 3 March 1980, appointed his brother, Benjamin Laurel,
as Senior Executive Assistant in the Office of the Governor, a non-career
service position which belongs to the personal and confidential staff of an
elective official. 1
On 31 December 1980, the position of Provincial Administrator of Batangas
became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for
lack of qualified applicants and so as not to prejudice the operation of the
Provincial Government, petitioner designated his brother, Benjamin Laurel, as
Acting Provincial Administrator effective 2 January 1981 and to continue until the
appointment of a regular Provincial Administrator, unless the designation is
earlier revoked. 2
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil
Security Officer, a position which the Civil Service Commission classifies as
"primarily confidential" pursuant to P.D. No. 868. 3
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil
Service Commission 4 to bring to its attention the "appointment" of Benjamin
Laurel as Provincial Administrator of Batangas by the Governor, his brother. He
alleges therein that: (1) the position in question is a career position, (2) the
appointment violates civil service rules, and (3) since the Governor authorized
said appointee to receive representation allowance, he violated the Anti-Graft
and Corrupt Practices Act. He then asks that the matter be investigated.
In his letter to the Chairman of the Civil Service Commission dated 18 January
1983, 5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in
behalf of herein petitioner, asserts that the latter did not violate the provision
prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to
the positions of Senior Executive Assistant and Civil Security Officer, both are
primarily confidential in nature; and, with respect to the position of Provincial
Administrator:
. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a
relative to a career Civil Service position, like that of a provincial administrator.
Governor Laurel did not appoint his brother, Benjamin, as Provincial
Administrator. He merely designated him "Acting Provincial Administrator." And
"appointment" and "designation" are two entirely different things. Appointment
implies original establishment of official relation. Designation is the imposition of
new or additional duties upon an officer to be performed by him in a special
manner. It presupposes a previous appointment of the officer in whom the new or
additional duties are imposed.
Appointment is generally permanent, hence the officer appointed cannot be
removed except for cause; designation is merely temporary and the new or
additional powers may be withdrawn with or without cause.
Benjamin C. Laurel had already been appointed Senior Executive Assistant in
the Office of the Governor when Governor Laurel designated him Acting
Provincial Administrator.
It is further alleged that there was no violation of the Anti-Graft and Corrupt
Practices Act because:
As Acting Provincial Administrator, Benjamin is entitled under Office of the
President Memorandum-Circular No. 437, series of 1971, to a monthly
representation allowance of P350.00. And said allowance is "strictly on
reimbursement basis." 6
On 12 July 1983, the Civil Service Commission handed down the aforesaid
Resolution No. 83-358 7 which, inter alia, revokes the designation of Benjamin as
Acting Provincial Administrator on the ground that it is "nepotic", or in violation of
Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads
as follows:
SECTION 49. Nepotism. (a) All appointments in the national, provincial, city
and municipal governments or in any branch or instrumentality thereof, including
government-owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of
the persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to
are those related within the third degree either of consanguinity or affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1)
persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4)
members of the Armed Forces of the Philippines: Provided, however, That in
each particular instance full report of such appointment shall be made to the
Commission.
xxx xxx xxx
Although what was extended to Benjamin was merely a designation and
not an appointment, the Civil Service Commission ruled that "the
prohibitive mantle on nepotism would include designation, because what
cannot be done directly cannot be done indirectly." It further held that
Section 24(f) of Republic Act No. 2260 provides that no person appointed to a
position in the non-competitive service (now non-career) shall perform the duties
properly belonging to any position in the competitive service (now career
service). The petitioner, therefore, could not legally and validly designate
Benjamin, who successively occupied the non-career positions of Senior
Executive Assistant and Civil Security Officer, to the position of Provincial
Administrator, a career position under Section 4 of R.A. No. 5185.
Petitioner's motion to reconsider said Resolution, 8 based on the claim that the
questioned position is primarily confidential in nature, having been denied in
Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service
Commission maintains that said position is not primarily-confidential in nature
since it neither belongs to the personal staff of the Governor nor are the duties
thereof confidential in nature considering that its principal functions involve
general planning, directive and control of administrative and personnel service in
the Provincial Office, petitioner filed the instant petition invoking the following
grounds:
A. Respondent Commission has committed a (sic) grave abuse of discretion
amounting to lack or excess of jurisdiction when it held that the position of
provincial administrator is not a primarily-confidential position because said ruling
is diametrically opposed to, and in utter disregard of rulings of this Honorable
Court as to what is a primarily-confidential position under Article XII-B, Sec. 2 of
the Constitution.
B. Respondent Commission gravely abused its discretion and acted without
jurisdiction when it arrogated unto itself the power to review a designation made
by petitioner by virtue of the powers in him vested under Section 2077 of the
Revised Administrative Code.
C. Respondent Commission exceeded its jurisdiction when it gave due course to
the complaint of private respondent and thereafter promulgated the resolutions
under question in this petition.
D. There is no appeal, nor any other plain, speedy and adequate remedy in the
ordinary course of law available to petitioner to have the questioned resolutions
of respondent Commission reviewed and thereafter nullified, revoked and set
aside, other than this recourse to a petition for certiorari under Rule 65 of the
Rules of Court.
In the Comment filed for the respondent Commission on 7 October 1985, the
Solicitor General sustains the challenged resolutions and contends that the
position of Provincial Administrator is intended to be part of the career system
and since it requires a specific civil service eligibility, it belongs to the career
service under Section 5(1) of P.D. No. 807 and has not been declared primarily
confidential by the President pursuant to Section 1 of P.D. No. 868; that the
Commission has the authority to review, disapprove, and set aside even mere
designations, as distinguished from appointments, for Section 2 of P.D. No. 807
vests in it the power to enforce the laws and rules governing the selection,
utilization, training and discipline of civil servants; and that it can act on
Sangalang's complaint pursuant to Section 37 of P.D. No. 807, for what he filed
was not an action for quo warranto, but an administrative complaint to correct a
violation of the Civil Service law and rules which involved public service and the
public interest. Per Benitez vs. Paredes, 10 reiterated in Taada vs. Tuvera, 11
where the question is one of public right, the people are regarded as the real
parties in interest, and the relator at whose instigation the proceedings are
instituted need only show that he is a citizen and as such interested in the
execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment insisting therein
that the duties, functions and responsibilities of the Provincial Administrator
render said position primarily confidential in nature; the requirement of a specific
service eligibility and absence of a presidential declaration that the position is
primarily confidential do not place the said position in the career service; the
position of Provincial Administrator is in the non-career service; and that the
Benitez vs. Paredes and Taada vs. Tuvera cases are not applicable in this
case. Petitioner insists that the controlling doctrines are those enunciated in
Salazar vs. Mathay, 12 where this Court held that there are two instances
when a position may be considered primarily confidential, to wit: (a) when
the President, upon recommendation of the Commissioner of Civil Service
(now Civil Service Commission) has declared a position to be primarily
confidential; and (2) in the absence of such declaration, when by the very
nature of the functions of the office, there exists close intimacy between
the appointee and the appointing power which insures freedom of
intercourse without embarrassment or freedom from misgiving or betrayals
of personal trust or confidential matters of state and Piero vs. Hechanova,
13 where this Court ruled that at least, since the enactment of the 1959 Civil
Service Act (R.A. No. 2260), it is the nature of the position that finally
determines whether a position is primarily confidential, policy determining,
or highly technical and that executive pronouncements can be no more
than initial determinations that are not conclusive in case of conflict, which
must be so, or else "it would then lie within the discretion of the Chief
Executive to deny to any officer, by executive fiat, the protection of section
4, Article XII of the Constitution."
In his Rejoinder filed on 16 December 1986, the Solicitor General states that the
rulings in the Salazar and Piero cases have been modified and superseded
by Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No.
868, which provides:
Any provision of law authorizing any official, other than the President, to
declare positions policy-determining, primarily confidential or highly
technical which are exempt from the Civil Service Law and rules is hereby
repealed, and only the President may declare a position-determining,
highly technical or primarily confidential, upon recommendation of the Civil
Service Commission, the Budget Commission and the Presidential
Reorganization Commission.
The Solicitor General further asseverates that the Commissions' giving due
course to the complaint of Sangalang is manifestly valid and legal for it is also in
accordance with the declared policies of the State provided for in Section 2 of
P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course to the petition
and required the parties to submit simultaneous memoranda.
We shall take up the issues in the order they are presented above.
1. The first issue becomes important because if the questioned position is
primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in
the instant case. Interestingly, however, petitioner did not raise it in the letter to
the Chairman of the Civil Service Commission dated 18 January 1983. 14
On the contrary, he submits, or otherwise admits therein, that said position is not
primarily confidential for it belongs to the career service. He even emphasized
this fact with an air of absolute certainty, thus:
At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D.
807 is the appointment of a relative to a career Civil Service position, LIKE
THAT OF PROVINCIAL ADMINISTRATOR . . . (capitalization supplied for
emphasis).
The sole ground invoked by him for exemption from the rule on nepotism is, as
above indicated: the rule does not apply to designation only to appointment.
He changed his mind only after the public respondent, in its Resolution No. 83-
358, ruled that the "prohibitive mantle on nepotism would include designation,
because what cannot be done directly cannot be done indirectly" and, more
specifically, only when he filed his motion to reconsider said resolution. Strictly
speaking, estoppel has bound petitioner to his prior admission. Per Article 1431
of the Civil Code, through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as
against the person relying thereon. 15
But even if estoppel were not to operate against him, or regardless thereof, his
claim that the position of Provincial Administrator is primarily confidential,
is without merit.
As correctly maintained by the public respondent and the Solicitor General, the
position of Provincial Administrator is embraced within the Career Service under
Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in
the Manual of Position Descriptions, 16 to wit:
Education : Bachelor's degree preferably in Law/Public or Business
Administration.
Experience : Six years of progressively responsible experience in planning,
directing and administration of provincial government operations. Experience in
private agencies considered are those that have been more or less familiar level
of administrative proficiency.
Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service
(Professional)/First Grade/Supervisor).
It may be added that the definition of its functions and its distinguishing
characteristics as laid down in the Manual, thus:
xxx xxx xxx
2. DEFINITION:
Under the direction of the Provincial Governor, responsible for the overall
coordination of the activities of the various national and local agencies in the
province; and general planning, direction and control of the personnel functions
and the administrative services of the Governor's Office.
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level management, administrative and
organizational work in the operation of provincial government with highly
complex, involved relationships with considerable delegation of authority and
responsibility and a high degree of public contact.
render indisputable the above conclusion that the subject position is in the career
service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance
based on merit and fitness to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications, (b) opportunity for
advancement to higher career positions, and (c) security of tenure. More
specifically, it is an open career position, for appointment to it requires prior
qualification in an appropriate examination. 17 It falls within the second major
level of positions in the career service, per Section 7 of P.D. No. 807, which
reads:
Sec. 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:
xxx xxx xxx
(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; . . .
In Piero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:
It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A.
2260), it is the nature of the position which finally determines whether a
position is primarily confidential, policy determining or highly technical.
Executive pronouncements can be no more than initial determinations that are
not conclusive in case of conflict. And it must be so or else it would then lie within
the discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII 19 of the Constitution.
This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which
pertinently reads:
. . . and only the President may declare a position policy-determining, highly
technical or primarily confidential, upon recommendation of the Civil Service
Commission, the Budget Commission and the Presidential Reorganization
Commission.
for the reason that the latter may be considered merely as the initial
determination of the Executive, which in no case forecloses judicial review. A rule
that exclusively vests upon the Executive the power to declare what position may
be considered policy-determining, primarily confidential, or highly technical would
subvert the provision on the civil service under the 1973 Constitution which was
then in force at the time the decree was promulgated. Specifically, Section 2 of
Article XII of said Constitution makes reference to positions which are policy-
determining, primarily confidential, or highly technical in nature," thereby leaving
no room for doubt that, indeed, it is the nature of the position which finally
determines whether it falls within the above mentioned classification. The 1987
Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes
reference to "positions which are policy-determining, primarily confidential, or
highly technical."
In the light of the foregoing, We cannot accept the view of the Solicitor General in
his Rejoinder 20 that Salazar vs. Mathay 21 and Piero, et al. vs. Hechanova, et
al., 22 have already been modified by Section 6 of P.D. No. 807 and the third
paragraph of Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter alia, be
subject to the rule on nepotism.
We likewise agree with the public respondent that there is one further obstacle to
the occupation by Benjamin Laurel of the position of Provincial Administrator. At
the time he was designated as Acting Provincial Administrator, he was holding
the position of Senior Executive Assistant in the Office of the Governor, a
primarily confidential position. He was thereafter promoted as Civil Security
Officer, also a primarily confidential position. Both positions belong to the non-
career service under Section 6 of P.D. No. 807. As correctly ruled by the public
respondent, petitioner cannot legally and validly designate Benjamin Laurel as
Acting Provincial Administrator, a career position, because Section 24(f) of R.A.
No. 2260 provides that no person appointed to a position in the non-
competitive service (now non-career) shall perform the duties properly
belonging to any position in the competitive service (now career service).
2. Being embraced in the career service, the position of Provincial Administrator
must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or
temporary appointment. The first shall be issued to a person who meets all the
requirements for the position to which he is appointed, including the appropriate
eligibility prescribed. 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 except the
appropriate civil service eligibility, provided, however, that such temporary
appointment shall not exceed twelve months, but the appointee may be replaced
sooner if a qualified civil service eligible becomes available. 23
Petitioner could not legally and validly appoint his brother Benjamin Laurel to
said position because of the prohibition on nepotism under Section 49 of P.D.
No. 807. They are related within the third degree of consanguinity and the case
does not fall within any of the exemptions provided therein.
Petitioner, however, contends that since what he extended to his brother is not
an appointment, but a DESIGNATION, he is not covered by the prohibition.
Public respondent disagrees, for:
By legal contemplation, the prohibitive mantle on nepotism would include
designation, because what cannot be done directly cannot be done indirectly. 24
We cannot accept petitioner's view. His specious and tenuous distinction
between appointment and designation is nothing more than either a ploy
ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch
maneuver to cushion the impact of its violation. The rule admits of no distinction
between appointment and designation. Designation is also defined as "an
appointment or assignment to a particular office"; and "to designate" means "to
indicate, select, appoint or set apart for a purpose or duty. 25
In Borromeo vs. Mariano, 26 this Court said:
. . . All the authorities unite in saying that the term "appoint" is well-known in law
and whether regarded in its legal or in its ordinary acceptation, is applied to the
nomination or designation of an individual . . . (emphasis supplied).
In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:
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.
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that
designation should be differentiated from appointment. Reading this section with
Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to
fill it up because it is vacant, is necessarily included in the term appointment, for
it precisely accomplishes the same purpose. Moreover, if a designation is not to
be deemed included in the term appointment under Section 49 of P.D. No. 807,
then the prohibition on nepotism would be meaningless and toothless. Any
appointing authority may circumvent it by merely designating, and not appointing,
a relative within the prohibited degree to a vacant position in the career service.
Indeed, as correctly stated by public respondent, "what cannot be done directly
cannot be done indirectly." 28
3. As regards the last issue, We rule that the letter-complaint of Sangalang was
validly given due course by public respondent. Undoubtedly, as shown above,
there was a violation of law committed by petitioner in designating his brother as
Acting Provincial Administrator. Any citizen of the Philippines may bring that
matter to the attention of the Civil Service Commission for appropriate action
conformably with its role as the central personnel agency to set standards and to
enforce the laws and rules governing the selection, utilization, training and
discipline of civil servants, 29 with the power and function to administer and
enforce the Constitutional and statutory provisions on the merit system. 30
Moreover, Section 37 of the decree expressly allows a private citizen to directly
file with the Civil Service Commission a complaint against a government official
or employee, in which case it may hear and decide the case or may deputize any
department or agency or official or group of officials to conduct an investigation.
The results of the investigation shall be submitted to the Commission with
recommendation as to the penalty to be imposed or other action to be taken. This
provision gives teeth to the Constitutional exhortation that a public office is a
public trust and public officers and employees must at all times be, inter alia,
accountable to the people. 31 An ordinary citizen who brings to the attention of
the appropriate office any act or conduct of a government official or employee
which betrays the public interest deserves nothing less than the praises, support
and encouragement of society. The vigilance of the citizenry is vital in a
democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the challenged
Resolutions of the Civil Service Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
[G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY,
respondent.
D E C I S I O N
PARDO, J .:
The case before us is an appeal via certiorari interposed by the Civil
Service Commission from a decision of the Court of Appeals ruling that
respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and
void the Civil Service Commissions resolution dismissing him from the service as
Vocational School Administrator, Balicuatro College of Arts and Trade, Allen,
Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-
President, Allen Chapter, Northern Samar, filed with the Civil Service
Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual
drunkenness, misconduct and nepotism.[1]
After the fact-finding investigation, the Civil Service Regional Office No. 8,
Tacloban City, found a prima facie case against respondent, and, on March 5,
1996, issued the corresponding formal charge against him.[2] Accordingly, the
Civil Service Commission conducted a formal investigation, and, on January 28,
1997, the Civil Service Commission promulgated its resolution finding no
substantial evidence to support the charge of habitual drunkenness and
misconduct. However, the Civil Service Commission found respondent Pedro O.
Dacoycoy guilty of nepotism on two counts as a result of the appointment of his
two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively,
and their assignment under his immediate supervision and control as the
Vocational School Administrator Balicuatro College of Arts and Trades, and
imposed on him the penalty of dismissal from the service.[3]
On February 25, 1997, respondent Dacoycoy filed a motion for
reconsideration;[4] however, on May 20, 1997, the Civil Service Commission
denied the motion.[5]
On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a
special civil action for certiorari with preliminary injunction[6] to set aside the Civil
Service Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision reversing
and setting aside the decision of the Civil Service Commission, ruling that
respondent did not appoint or recommend his two sons Rito and Ped, and,
hence, was not guilty of nepotism. The Court further held that it is the person
who recommends or appoints who should be sanctioned, as it is he who
performs the prohibited act.[7]
Hence, this appeal.
On November 17, 1998, we required respondent to comment on the petition
within ten (10) days from notice.[8] On December 11, 1998, respondent filed his
comment
We give due course to the petition.
The basic issue raised is the scope of the ban on nepotism.
We agree with the Civil Service Commission that respondent Pedro O.
Dacoycoy was guilty of nepotism and correctly meted out the penalty of
dismissal from the service.
The law defines nepotism[9] as follows:
Sec. 59. Nepotism. (1) All appointments to the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including
government owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of
the persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word relative and members of the family referred to
are those related within the third degree either of consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and
(d) members of the Armed Forces of the Philippines: Provided, however, That in
each particular instance full report of such appointment shall be made to the
Commission.
Under the definition of nepotism, one is guilty of nepotism if an
appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending authority is. To
constitute a violation of the law, it suffices that an appointment is extended or
issued in favor of a relative within the third civil degree of consanguinity or affinity
of the chief of the bureau or office, or the person exercising immediate
supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro
College of Arts and Trades, Allen, Northern Samar. It is true that he did not
appoint or recommend his two sons to the positions of driver and utility worker in
the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head
of the Vocational Department of the BCAT, who recommended the appointment
of Rito. Mr. Daclag's authority to recommend the appointment of first level
positions such as watchmen, security guards, drivers, utility workers, and casuals
and emergency laborers for short durations of three to six months was
recommended by respondent Dacoycoy and approved by DECS Regional
Director Eladio C. Dioko, with the provision that such positions shall be under Mr.
Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy
driver of the school. On January 3, 1993, Mr. Daclag also appointed Ped
Dacoycoy casual utility worker. However, it was respondent Dacoycoy who
certified that funds are available for the proposed appointment of Rito Dacoycoy
and even rated his performance as very satisfactory. On the other hand, his
son Ped stated in his position description form that his father was his next higher
supervisor. The circumvention of the ban on nepotism is quite obvious.
Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O.
Dacoycoy, who was the school administrator. He authorized Mr. Daclag to
recommend the appointment of first level employees under his immediate
supervision. Then Mr. Daclag recommended the appointment of respondents
two sons and placed them under respondents immediate supervision serving as
driver and utility worker of the school. Both positions are career positions.
To our mind, the unseen but obvious hand of respondent Dacoycoy was
behind the appointing or recommending authority in the appointment of his two
sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party
adversely affected who may take an appeal from an adverse decision of the
appellate court in an administrative civil service disciplinary case. There is no
question that respondent Dacoycoy may appeal to the Court of Appeals from the
decision of the Civil Service Commission adverse to him.[10] He was the
respondent official meted out the penalty of dismissal from the service. On
appeal to the Court of Appeals, the court required the petitioner therein, here
respondent Dacoycoy, to implead the Civil Service Commission as public
respondent[11] as the government agency tasked with the duty to enforce the
constitutional and statutory provisions on the civil service.[12]
Subsequently, the Court of Appeals reversed the decision of the Civil
Service Commission and held respondent not guilty of nepotism. Who now may
appeal the decision of the Court of Appeals to the Supreme Court? Certainly not
the respondent, who was declared not guilty of the charge. Nor the complainant
George P. Suan, who was merely a witness for the government.[13]
Consequently, the Civil Service Commission has become the party adversely
affected by such ruling, which seriously prejudices the civil service system.
Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals
to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule
extant jurisprudence that the phrase party adversely affected by the decision
refers to the government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of suspension,
demotion in rank or salary, transfer, removal or dismissal from office[15] and not
included are cases where the penalty imposed is suspension for not more then
thirty (30) days or fine in an amount not exceeding thirty days salary[16] or
when the respondent is exonerated of the charges, there is no occasion for
appeal.[17] In other words, we overrule prior decisions holding that the Civil
Service Law does not contemplate a review of decisions exonerating officers or
employees from administrative charges enunciated in Paredes v. Civil Service
Commission;[18] Mendez v. Civil Service Commission;[19] Magpale v. Civil
Service Commission;[20] Navarro v. Civil Service Commission and Export
Processing Zone Authority[21] and more recently Del Castillo v. Civil Service
Commission[22]
The Court of Appeals reliance on Debulgado vs. Civil Service
Commission,[23] to support its ruling is misplaced. The issues in Debulgado are
whether a promotional appointment is covered by the prohibition against
nepotism or the prohibition applies only to original appointments to the civil
service, and whether the Commission had gravely abused its discretion in
recalling and disapproving the promotional appointment given to petitioner after
the Commission had earlier approved that appointment. Debulgado never even
impliedly limited the coverage of the ban on nepotism to only the appointing or
recommending authority for appointing a relative. Precisely, in Debulgado, the
Court emphasized that Section 59 means exactly what it says in plain and
ordinary language: x x x The public policy embodied in Section 59 is clearly
fundamental in importance, and the Court had neither authority nor inclination to
dilute that important public policy by introducing a qualification here or a
distinction there.[24]
Nepotism is one pernicious evil impeding the civil service and the efficiency
of its personnel. In Debulgado, we stressed that [T]the basic purpose or
objective of the prohibition against nepotism also strongly indicates that the
prohibition was intended to be a comprehensive one.[25] The Court was
unwilling to restrict and limit the scope of the prohibition which is textually very
broad and comprehensive.[26] If not within the exceptions, it is a form of
corruption that must be nipped in the bud or bated whenever or wherever it
raises its ugly head. As we said in an earlier case what we need now is not only
to punish the wrongdoers or reward the outstanding civil servants, but also to
plug the hidden gaps and potholes of corruption as well as to insist on strict
compliance with existing legal procedures in order to abate any occasion for graft
or circumvention of the law.[27]
WHEREFORE, the Court hereby GRANTS the petition and REVERSES the
decision of the Court of Appeals in CA-G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the
Civil Service Commission dated January 28, 1998 and September 30, 1998,
dismissing respondent Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and
THE PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First
Division), and THE PEOPLE OF THE PHILIPPINES, represented by
the OFFICE OF THE SPECIAL PROSECUTOR, respondents.
D E C I S I O N
FRANCISCO, J .:
Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo
M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision
dated October 12, 1990,[2] as well as the Resolution dated December 20,
1991[3] denying reconsideration, convicting them of malversation under Article
217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt of having malversed the total amount of P55 Million of the
Manila International Airport Authority (MIAA) funds during their incumbency as
General Manager and Acting Finance Services Manager, respectively, of MIAA,
and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as
minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall
also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as
minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall
also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1)
day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as
maximum and for each of them to pay separately a fine of FIVE MILLION PESOS
(P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally
the Manila International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then
Assistant General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760)
since the total amount of P55 Million was taken on three (3) separate dates of
January, 1986. Tabuena appears as the principal accused - he being charged in
all three (3) cases. The amended informations in criminal case nos. 11758,
11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in
the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a managers check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there
was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned managers check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
x x x
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in
the City of Pasay, Philippines and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a managers check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there
was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned managers check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
x x x
That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in
the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the
General Manager and Acting Manager, Financial Services Department, respectively, of
the Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals against
the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating
and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a
managers check for said amount in the name of accused Luis A. Tabuena chargeable
against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City, purportedly as partial payment to the
Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there
was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned managers check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following
essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the
presidents office and in cash what the MIAA owes the Philippine National Construction
Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week
later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a
Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS
Memorandum) reiterating in black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly
approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.[4]
The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project
(MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2

P11,106,600.95
2. Supplemental Contract No. 13 5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2

4,586,610.80
4. Supplemental Contract No. 15 1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2

233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2

8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2

6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II

16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on May
28, 1984)
In this connection, please be informed that Philippine National Construction Corporation
(PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project
aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to
be deducted from said billings which will leave a net amount due to PNCC of only P4.5
million.
At the same time, PNCC has potential escalation claims amounting to P99 million in the
following stages of approval/evaluation:
Approved by Price Escalation Committee (PEC) but pended
for lack of funds
P 1.9 million
Endorsed by project consultants and currently being evaluated
by PEC
30.7 million
Submitted by PNCC directly to PEC and currently under
evaluation
66.5 million
T o t a l P99.1 million
There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual
amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to
additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment of the
repayment of PNCCs advances to the extent of P30 million corresponding to about 30%
of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially
recognized by MIADP consultants but could not be paid due to lack of funding.Kotc
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC of
P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister[5]
In obedience to President Marcos verbal instruction and memorandum,
Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million
of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million,
following a letter of even date signed by Tabuena and Dabao requesting the PNB
extension office at the MIAA - the depository branch of MIAA funds, to issue a
managers check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the
PNB Villamor branch counted the money after which, Tabuena took delivery
thereof. The P25 Million in cash were then placed in peerless boxes and duffle
bags, loaded on a PNB armored car and delivered on the same day to the office
of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez
did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and
delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million.
Peralta was Tabuenas co-signatory to the letter- request for a managers check
for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as
Tabuena requested him to do the counting of the P5 Million. After the counting,
the money was placed in two (2) peerless boxes which were loaded in the trunk
of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs.
Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that
Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena.
The receipt, dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and
Peralta themselves, out of the ordinary and not based on the normal
procedure. Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for
the P55 Million was presented. Defense witness Francis Monera, then Senior
Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in
court that there were no payments made to PNCC by MIAA for the months of
January to June of 1986.
The position of the prosecution was that there were no outstanding
obligations in favor of PNCC at the time of the disbursement of the P55 Million.
On the other hand, the defense of Tabuena and Peralta, in short, was that they
acted in good faith. Tabuena claimed that he was merely complying with the
MARCOS Memorandum which ordered him to forward immediately to the Office
of the President P55 Million in cash as partial payment of MIAAs obligations to
PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to
PNCC. Peralta for his part shared the same belief and so he heeded the request
of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which
ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten
(10) errors[6] committed by the Sandiganbayan for this Courts consideration. It
appears, however, that at the core of their plea that we acquit them are the
following:
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being
charged with intentional malversation, as the amended informations commonly
allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did
then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by
negligence. In this connection, the Courts attention is directed to p. 17 of the
December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for
reconsideration) wherein the Sandiganbayan said:
x x x x x x x x x
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or of
the PNCC.E_oe
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so, Tabuena, by
his own narration, has categorically demonstrated that he is guilty of the misappropriation
or malversation of P55 Million of public funds. (Underscoring supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue
that:
1) While malversation may be committed intentionally or by negligence, both modes
cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional
malversation.[7]
3) Their conviction of a crime different from that charged violated their constitutional
right to be informed of the accusation.[8]
We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar
protestations raised by therein accused-petitioner Cabello whose conviction for
the same crime of malversation was affirmed, in this wise:
x x x 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. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct
crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however
be said that a conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater includes
the lesser offense. This is the situation that obtains in the present case. Appellant was
charged with willful falsification but from the evidence submitted by the parties, the
Court of Appeals found that in effecting the falsification which made possible the cashing
of the checks in question, appellant did not act with criminal intent but merely failed to
take proper and adequate means to assure himself of the identity of the real claimants as
an ordinary prudent man would do. In other words, the information alleges acts which
charge willful falsification but which turned out to be not willful but negligent. This is a
case covered by the rule when there is a variance between the allegation and proof, and is
similar to some of the cases decided by this Tribunal.
x x x
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being sufficient
that some of said essential elements or ingredients thereof be established to constitute the
crime proved. x x x.
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him.
Certainly, having alleged that the falsification has been willful, it would be incongruous
to allege at the same time that it was committed with imprudence for a charge of criminal
intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and
arguments also apply to the felony of malversation, that is, that an accused charged with
willful malversation, in an information containing allegations similar to those involved in
the present case, can be validly convicted of the same offense of malversation through
negligence where the evidence sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal intent on
the part of the accused. Thus, in the two (2) vintage, but significant malversation
cases of US v. Catolico[10] and US v. Elvia,[11] the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea - a crime is not committed if the mind of the person performing
the act complained of is innocent.
The rule was reiterated in People v. Pacana,[12] although this case
involved falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non
facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view
that criminal intent in embezzlement is not based on technical mistakes as to the
legal effect of a transaction honestly entered into, and there can be no
embezzlement if the mind of the person doing the act is innocent or if there is no
wrongful purpose.[13] The accused may thus always introduce evidence to show
he acted in good faith and that he had no intention to convert.[14] And this, to our
mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of
the MARCOS Memorandum, we are swayed to give credit to his claim of having
caused the disbursement of the P55 Million solely by reason of such
memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that
was what the MARCOS Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the presidential directive, and to
argue otherwise is something easier said than done. Marcos was undeniably
Tabuenas superior the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA
and PNCC.[15] In other words, Marcos had a say in matters involving inter-
government agency affairs and transactions, such as for instance, directing
payment of liability of one entity to another and the manner in which it should be
carried out. And as a recipient of such kind of a directive coming from the
highest official of the land no less, good faith should be read on Tabuenas
compliance, without hesitation nor any question, with the MARCOS
Memorandum. Tabuena therefore is entitled to the justifying circumstance of
Any person who acts in obedience to an order issued by a superior for some
lawful purpose.[16] The subordinate-superior relationship between Tabuena and
Marcos is clear. And so too, is the lawfulness of the order contained in the
MARCOS Memorandum, as it has for its purpose partial payment of the liability
of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the
observation, for instance, that the Ongpin Memo referred to in the presidential
directive reveals a liability of only about P34.5 Million. The Sandiganbayan in
this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCCs
escalation billings which would result in making payable to PNCC the amount of P34.5
million out of existing MIAA Project funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment of
repayment of PNCCs advances to the extent of P30 million corresponding to about 30%
of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially
recognized by MIADP consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC of
P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to
MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in
the stages of evaluation and approval, with only P32.6 million having been officially
recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos Memo was based) they would only be for a sum of up to P34.5
million.[17]
x x x x x
x x x x
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million
irrelevant, but it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a);
Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2
authorized only P34.5 million. The order to withdraw the amount of P55 million
exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins
Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to
withdraw P55 million.[18]
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as
to make him criminally liable. What is more significant to consider is that the
MARCOS Memorandum is patently legal (for on its face it directs payment of an
outstanding liability) and that Tabuena acted under the honest belief that the P55
million was a due and demandable debt and that it was just a portion of a bigger
liability to PNCC. This belief is supported by defense witness Francis Monera
who, on direct examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is
indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on
page 2, marked as Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[19]
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our
billings to MIA as contract-owner of the project that the Philippine
National Construction Corporation constructed. These are
billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the
contract-owner that are supposed to take care of price increases,
sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I understand
from you that these are due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is patently legal and the subordinate is not
aware of its illegality, the subordinate is not liable, for then there would only be a
mistake of fact committed in good faith.[22] Such is the ruling in Nassif v.
People[23] the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of
R.J. Campos, he inserted in the commercial document alleged to have been falsified the
word sold by order of his principal. Had he known or suspected that his principal was
committing an improper act of falsification, he would be liable either as a co-principal or
as an accomplice. However, there being no malice on his part, he was exempted from
criminal liability as he was a mere employee following the orders of his principal.[24]
Second. There is no denying that the disbursement, which Tabuena
admitted as out of the ordinary, did not comply with certain auditing rules and
regulations such as those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above
P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January
31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this
connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no bills
to support the disbursement. There were no certifications as to the availability of funds
for an unquestionably staggering sum of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He
did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the MARCOS Memorandum enjoined his
immediate compliance with the directive that he forward to the Presidents
Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape
responsibility for such omission. But since he was acting in good faith, his
liability should only be administrative or civil in nature, and not criminal. This
follows the decision in Villacorta v. People[26] where the Court, in acquitting
therein accused municipal treasurer of Pandan, Catanduanes of malversation
after finding that he incurred a shortage in his cash accountability by reason of
his payment in good faith to certain government personnel of their legitimate
wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in good faith mainly to government personnel, some of
them working at the provincial auditors and the provincial treasurers offices. And if
those payments ran counter to auditing rules and regulations, they did not amount to a
criminal offense and he should only be held administratively or civilly liable.
Likewise controlling is US v. Elvia[27] where it was held that payments in good
faith do not amount to criminal appropriation, although they were made with
insufficient vouchers or improper evidence. In fact, the Dissenting Opinions
reference to certain provisions in the revised Manual on Certificate of Settlement
and Balances - apparently made to underscore Tabuenas personal
accountability, as agency head, for MIAA funds - would all the more support the
view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5
expressly and solely speak of civilly liable to describe the kind of sanction
imposable on a superior officer who performs his duties with bad faith, malice or
gross negligence and on a subordinate officer or employee who commits willful
or negligent acts x x x which are contrary to law, morals, public policy and good
customs even if he acted under order or instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already
converted and misappropriated the P55 Million when he delivered the same to
Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent
appropriation to ones own use of anothers property which does not necessarily mean
to ones personal advantage but every attempt by one person to dispose of the goods of
another without right as if they were his own is conversion to his own use. (Terry v.
Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property
to enjoy and control it. The gist of conversion is the usurpation of the owners right of
property, and not the actual damages inflicted. Honesty of purpose is not a defense.
(Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
- At page 168, id.
x x x x x x x x x
The words convert and misappropriate connote an act of using or disposing of
anothers property as if it were ones own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to ones
own use includes not only conversion to ones personal advantage but every attempt to
dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them and
converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum directed
Tabuena to pay immediately the Philippine National Construction Corporation,
thru this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena
precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no
doubt, is in effect delivery to the Office of the President inasmuch as Mrs.
Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable
ground to believe that the President was entitled to receive the P55 Million since
he was certainly aware that Marcos, as Chief Executive, exercised supervision
and control over government agencies. And the good faith of Tabuena in having
delivered the money to the Presidents office (thru Mrs. Gimenez), in strict
compliance with the MARCOS Memorandum, was not at all affected even if it
later turned out that PNCC never received the money. Thus, it has been said
that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
x x x x x x x x x
Not every unauthorized payment of public funds is malversation. There is malversation
only if the public officer who has custody of public funds should appropriate the same, or
shall take or misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds. Where the payment of public funds
has been made in good faith, and there is reasonable ground to believe that the public
officer to whom the fund had been paid was entitled thereto, he is deemed to have acted
in good faith, there is no criminal intent, and the payment, if it turns out that it is
unauthorized, renders him only civilly but not criminally liable.[29]
Fourth. Even assuming that the real and sole purpose behind the
MARCOS Memorandum was to siphon-out public money for the personal benefit
of those then in power, still, no criminal liability can be imputed to Tabuena.
There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from
the felonious scheme. In short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million. In the cases of US v.
Acebedo[30] and Ang v. Sandiganbayan,[31] both also involving the crime of
malversation, the accused therein were acquitted after the Court arrived at a
similar finding of non-proof of conspiracy. In Acebedo, therein accused, as
municipal president of Palo, Leyte, was prosecuted for and found guilty by the
lower court of malversation after being unable to turn over certain amounts to the
then justice of the peace. It appeared, however, that said amounts were actually
collected by his secretary Crisanto Urbina. The Court reversed Acebedos
conviction after finding that the sums were converted by his secretary Urbina
without the knowledge and participation of Acebedo. The Court said, which we
herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor
did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft
committed by the secretary was shown on the part of the appellant in this case, nor does it
appear that he in any way participated in the fruits of the crime. If the secretary stole the
money in question without the knowledge or consent of the appellant and without
negligence on his part, then certainly the latter can not be convicted of embezzling the
same money or any part thereof.[32]
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection
to be converted into checks drawn in the name of one Marshall Lu, a non-
customer of MWSS, but the checks were subsequently dishonored. Ang was
acquitted by this Court after giving credence to his assertion that the conversion
of his collections into checks were thru the machinations of one Lazaro Guinto,
another MWSS collector more senior to him. And we also adopt the Courts
observation therein, that:
The petitioners alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar as
a superior officer is concerned but there must be stronger evidence to show fraud, malice,
or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The
prosecution failed to show that the petitioner was privy to the conspirational scheme.
Much less is there any proof that he profited from the questioned acts. Any suspicions of
conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted
into evidence before conviction beyond reasonable doubt may be imposed.[33]
The principles underlying all that has been said above in exculpation of Tabuena
equally apply to Peralta in relation to the P5 Million for which he is being held
accountable, i.e., he acted in good faith when he, upon the directive of Tabuena,
helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in
good faith of a duly executed order. Indeed, compliance to a patently lawful order
is rectitude far better than contumacious disobedience. In the case at bench, the
order emanated from the Office of the President and bears the signature of the
President himself, the highest official of the land. It carries with it the presumption
that it was regularly issued. And on its face, the memorandum is patently lawful
for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question.
Obedientia est legis essentia. Besides, the case could not be detached from the
realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting
opinion:
We reject history in arbitrarily assuming that the people were free during the era and
that the judiciary was independent and fearless. We know it was not; even the Supreme
Court at that time was not free. This is an undeniable fact that we can not just blink
away. Insisting on the contrary would only make our sincerity suspect and even provoke
scorn for what can only be described as our incredible credulity.[34]
But what appears to be a more compelling reason for their acquittal is the
violation of the accuseds basic constitutional right to due process. Respect for
the Constitution, to borrow once again Mr. Justice Cruzs words, is more
important than securing a conviction based on a violation of the rights of the
accused.[35] While going over the records, we were struck by the way the
Sandiganbayan actively took part in the questioning of a defense witness and of
the accused themselves. Tabuena and Peralta may not have raised this as an
error, there is nevertheless no impediment for us to consider such matter as
additional basis for a reversal since the settled doctrine is that an appeal throws
the whole case open to review, and it becomes the duty of the appellate court to
correct such errors as may be found in the judgment appealed from whether they
are made the subject of assignments of error or not.[36]
Simply consider the volume of questions hurled by the Sandiganbayan. At
the taking of the testimony of Francis Monera, then Senior Assistant Vice
President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16)
questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court interjected a
total of twenty-seven (27) questions (more than four times Prosecutor Viernes
questions and even more than the combined total of direct and cross-
examination questions asked by the counsels). After the defense opted not to
conduct any re-direct examination, the court further asked a total of ten (10)
questions.[37] The trend intensified during Tabuenas turn on the witness stand.
Questions from the court after Tabuenas cross-examination totalled sixty-seven
(67).[38] This is more than five times Prosecutor Viernes questions on cross-
examination (14), and more than double the total of direct examination and
cross-examination questions which is thirty-one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-examination questions by Prosecutor
Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded
a total of forty-one (41) questions.[39]
But more importantly, we note that the questions of the court were in the
nature of cross examinations characteristic of confrontation, probing and
insinuation.[40] (The insinuating type was best exemplified in one question
addressed to Peralta, which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness Monera, Tabuena and Peralta.
(Questions from the Court are marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the
PNCC had receivables from MIAA totalling P102,475,392.35, and although such
receivables were largely billings for escalation, they were nonetheless all due
and demandable. What follows are the cross-examination of Prosecutor Viernes
and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits 7 and 7-a, the
items here represent mostly escalation billings. Were those
escalation billings properly transmitted to MIA authorities?
A I dont have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer,
dated July 6, 1988, following up for payment of the balance of
our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a
conference between the MIA and the PNCC for the
determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are
what we deemed are valid receivables. And, in fact, we have
been following up for payment.
*Q This determination of the escalation costs was it accepted as
the correct figure by MIA?
A I dont have any document as to the acceptance by MIA, your
Honor, but our company was able to get a document or a letter
by Minister Ongpin to President Marcos, dated January 7, 1985,
with a marginal note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and
request for partial deferment of payment for MIA Development
Project, your Honor.
*Q It has nothing to do with the implementation of the escalation
costs?
A The details show that most of the accounts refer to our
escalations, your Honor.
*Q Does that indicate the computation for escalations were
already billed or you do not have any proof of that?
A Our subsidiary ledger was based on billings to MIA and this letter
of Minister Ongpin appears to have confirmed our billings to MIA,
your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on these
escalation billings?
A Based on records available as of today, the P102 million was
reduced to about P56.7 million, if my recollection is correct, your
Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986,
since Mr. Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think
the payments were made before the entry of our President, your
Honor. Actually, the payment was in the form of: assignments to
State Investment of about P23 million; and then there was P17.8
million application against advances made or formerly given; and
there were payments to PNCC of about P2.6 million and there
was a payment for application on withholding and contractual
stock of about P1 million; that summed up to P44.4 million all in
all. And you deduct that from the P102 million, the remaining
balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on
this P102 million, only P2 million had been payments in
cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of
accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but
the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by
which the basic account has been reduced. These
reductions, whether by adjustment or assignment or actual
delivery of cash, were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and
payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these
escalation billings. Do we get it from you that there was an
admission of these escalation costs as computed by you by
MIA, since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in
case or check, if there were payments made?
A The P44 million payments was in the form of assignments, your
Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were
there any liquidations made by MIA against these escalation
billings?
A I have not reviewed the details of the record, your Honor. But the
ledger card indicates that there were collections on page 2 of the
Exhibit earlier presented. It will indicate that there were
collections shown by credits indicated on the credit side of the
ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to
the MIA with respect to the escalation billings. Was the
payment in cash or just credit of some sort before December
31, 1985?
A Before December 31, 1985, the reference of the ledger are
official receipts and I suppose these were payments in cash, your
Honor.
*Q Do you know how the manner of this payment in cash was
made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial
liquidation prior to December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44
million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of
cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31,
1985 in connection with or in case of cash payment, was the
payment in cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin
to the former President Marcos, did you say that that letter
concurs with the escalation billings reflected in Exhibits 7 and
7-a?
WITNESS
A The Company or the management is of the opinion that this
letter, a copy of which we were able to get, is a confirmation of
the acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas
the entries of escalation billings as appearing in Exhibit 7 are
dated June 30, 1985, would you still insist that the letter of
January 1985 confirms the escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of
December 31, 1985, it stood at P102 million after payments were
made as shown on the credit side of the ledger. I suppose hat
the earlier amount, before the payment was made, was bigger
and therefore I would venture to say that the letter of January 7,
1985 contains an amount that is part of the original contract
account. What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit 7 and 7-a, there
were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of
MIA?
WITNESS
A Yes, sir.
Q In 1986, from your records as appearing in Exhibit 7-a, there
were no payments made to PNCC by MIA for the months of
January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by
MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was
no payment of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit 7 there appears an
assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent
or of adjustment of account, or by assignment, or by offsets,
when did these payments begin?
A Per ledger card, there were payments in 1985, prior to December
31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of
settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements. P23
million is just part of the P44 million.
*Q And what you are saying is that, PNCC passed the account to
State Investment. In other words, State Investment bought
the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to
State Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have
not yet reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to
PNCC?
A There is still a balance of receivables from MIA as evidenced by
a collection letter by our President dated July 6, 1988, your
Honor. The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x
x.[41]
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the
checks totalling P55 Million pursuant to the MARCOS Memorandum and that he
thereafter delivered said amount in cash on the three (3) dates as alleged in the
information to Marcos private secretary Mrs. Jimenez at her office at Aguado
Street, who thereafter issued a receipt. Tabuena also denied having used the
money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt
from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was
issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor. What
happened is that, I did not notice the date placed by Mrs.
Gimenez.
*Q Are you telling us that this Exhibit 3 was incorrectly dated?
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the
receipt was dated January 30?
A Yes, your Honor.
*Q When was Exhibit 3 delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit 3 was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last
delivery?
A Yes, sir.
Q Did you see this Exhibit 3 prepared in the Office of Mrs.
Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you
see who typed this receipt?
A No, sir. What happened is that, she went to her room and when
she came out she gave me that receipt.
*PJ GARCHITORENA
*Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated
January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit 3?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit
3?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room,
she handed this receipt to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been
receiving letters from her also and when she requests for
something from me. Her writing is familiar to me.
*Q So, when the Presiding Justice asked you as to how you knew
that this was the signature of Mrs. Gimenez and you answered
that you saw Mrs. Gimenez signed it, you were not exactly
truthful?
A What I mean is, I did not see her sign because she went to her
room and when she came out, she gave me that receipt, your
Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and
listen to it carefully. Because when I asked you, you said you
saw her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q Was there another person inside the office of Mrs. Gimenez when
she gave you this receipt Exhibit 3?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55
million was made on January 30. Do we understand from you
that this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only
afterwards. This should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second
deliveries?
A Because I know that the delivery was not complete yet, your
Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55
million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also
present the accused, your Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the Presidents memorandum marked
Exhibit 1? Or more precisely, who handed you this
memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was
being asked?
A The money was in payment for the debt of the MIA Authority to
PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no
voucher prepared to cover such payment? In other words, why
was the delivery of the money not covered by any
voucher?Calrky
A The instruction to me was to give it to the Office of the President,
your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this
particular disbursement?
A I was just told to bring it to the Office of the President, your
Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of
the President for obligations of the MIAA in payment of its
obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the
President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the manner with which such
payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed,
your Honor.
*Q Before receiving this memorandum Exhibit 1, did the former
President Marcos discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me
pay what I owe the PNCC directly to his office in cash, your
Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, Yes, sir, I will do it/
*Q Were you the one who asked for a memorandum to be signed by
him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAAs
obligation with PNCC, did you not on your own accord already
prepare the necessary papers and documents for the payment of
that obligation?
A He told me verbally in the telephone that the Order for the
payment of that obligation is forthcoming, your Honor. I will
receive it.
*Q Is this the first time you received such a memorandum from the
President?
A Yes, your Honor.
*Q And was that the last time also that you received such a
memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the
regular procedure?
A: No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the amount of P99.1 million, your
Honor. MIAA owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record,
cancelled by virtue of that payment?
A Based on the order to me by the former President Marcos
ordering me to pay that amount to his office and then the
mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly to the PNCC considering
that you are the Manager of MIA at that time and the PNCC is a
separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacaang to pay PNCC
through the Office of the President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
*Q How was the obligation of MIAA to PNCC incurred. Was it
through the President or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of
the Board or President of the PNCC? In other words, who
signed the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who
signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the
obligations of BAT were transferred to MIAA. So the
accountabilities of BAT were transferred to MIAA and we are the
ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation
was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact
that this was not the regular course or Malacaang was not the
creditor?
A I saw nothing wrong with that because that is coming from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you
agreed to deliver money in this amount through a mere receipt
from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge
that you have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent
authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your joining the MIA, did you ever work for the
government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as
its Manager was your first employment with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?
A I was also the Chairman of the Games and Amusement Board,
your Honor.
*Q But you were not the executive or operating officer of the Games
and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement
Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that
time?
A I was also Commissioner of the Game Fowl Commission, your
Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA
and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Game Fowl
Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with
our Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: Chairman or Manager,
this cannot be. And we learn later on that COA has reasons for
its procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient,
sometimes we consider it foolish, but we know there is reason in
this apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in
cash, not to the creditor of the particular credit, and to be
delivered in armored cars to be acknowledged only by a receipt
of a personal secretary. After almost 18 years in the government
service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and
say, What will I do here?
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have
asked the COA for some guidance on this matter so that you will
do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell
that delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or
you and Mr. Peralta signed requests for issuance of Managers
checks and you were accommodated by the PNB Office at
Nichols without any internal documentation to justify your request
for Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will
win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that
time, would occasionally come with so-called expose, is that not
so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would
always come out with the real or imagined scandal in the
government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some
apprehension that some disloyal employees might leak you out
and banner headline it in some mosquito publications like the
Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear.
We are in the government and we in the government fear the
COA and we also fear the press. We might get dragged into
press releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly
documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three
(3) different trips from Nichols to Aguado usually late in the day
almost in movie style fashion. I mean, the money being loaded
in the trunk of your official car and then you had a back-up truck
following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard
with P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million
was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more
with P5 million inside the trunk of your car, was that not a
nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a
memorandum request for the issuance of the Managers Check for P5 Million
upon order of Tabuena and that he [Peralta] was aware that MIAA had an
existing obligation with PNCC in the amount of around P27 Million. He affirmed
having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5
Million, but denied having misappropriated for his own benefit said amount or any
portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary for
you to co-sign with Mr. Tabuena the request for issuance of
Managers check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of
MIAA, sir, and all withdrawals of funds should have my signature
because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-
sign with Mr. Tabuena in similar requests for the issuance of
Managers checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the
request?
A Yes, sir, and I think the order is part of the exhibits. And based
on that order, I co-signed in the request for the issuance of
Managers check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr.
Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked
as exhibit N.

PROS VIERNES
It was marked as Exhibit M, your Honor.
Q How did you know there was an existing liability of MIAA in favor
of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared
the financial statement of MIAA as of December 31, 1985 and it
came to my attention that there was an existing liability of around
P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of
1986, sir.
Q Is it your usual practice to prepare the Financial Statement after
the end of the year within three (3) weeks after the end of the
year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month
because there will be a Board of Directors Meeting and the
Financial Statement of the prior month will be presented and
discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual
activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former
Minister Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I
was shown a copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister
Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you
withdrew the amount of P5 million from the PNB Extension Office
at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So
what I did was to bundle count the P5 million and it was placed in
two (2) peerless boxes.
Q Did you actually participate in the counting of the money by
bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s,
sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes, sir.
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the
trunk of the car of Mr. Tabuena, I was left behind and I went back
to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00
oclock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office
hours. But then I was there at around 4:00 oclock and we
started counting at around 4:30 p.m. because they have to place
it in a room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the
afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the
peerless boxes and Mr. Tabuena left for Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the
paper works in the office, sir.
Q So, even if it was already after 5:00 oclock in the afternoon, you
still went back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC
had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in
cash, it was not based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that
all disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers.
But then, inasmuch as what we did was to prepare a request to
the PNB, then this can be covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher
presented in Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or
other accounting books of MIAA?
A The payment of P5 million was recorded in a Journal Voucher,
your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application
for Managers Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt
from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs.
Fe Roa Gimenez, your Honor. Inasmuch as the payment should
be made through the Office of the president, I accepted the
receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary
supporting documents, vouchers, and use that receipt as a
supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no
disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, 1986, and that was
very close to the election held in that year, did you not entertain
any doubt that the amounts were being used for some other
purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont
think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the
MIAA, did you not consider it proper that a check be issued only
after it is covered by a disbursement voucher duly approved by
the proper authorities?
A Your Honor, what we did was to send a request for a Managers
check to the PNB based on the request of Mr. Tabuena and the
order of Mr. Tabuena was based on the Order of President
Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did
you not think it proper to have this transaction covered by a
disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made
through cash vouchers, or even though Journal Vouchers, or
even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you
allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because
that was the order of President Marcos to pay PNCC through the
Office of the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider
that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the
order was to pay PNCC the amount of P5 million through the
Office of the President and it should be paid in cash, your Honor.
And at that time, I know for a fact also that there was an existing
P.D. wherein the President of the Republic of the Philippines can
transfer funds from one office to another and the PNCC is a
quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that
P.D. which you referred to?
A I am not aware of the motive of the President, but then since he
is the President of the Philippines, his order was to pay the
PNCC through the Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when
ordinarily payment of an obligation of MIAA is supposed to be
paid in check?
A I caused the payment through the name of Mr. Tabuena because
that was the order of Mr. Tabuena and also he received an order
coming from the President of the Philippines at that time, your
Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made
in the same journal?
In other words, really what you are telling us is that, a Journal Voucher
is to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper,
you are saying it is proper only because of the exceptional nature
of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be
coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was
supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of
the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate
basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded
liability of P27 million.
*Q We are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the
movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on
our existing liability of P27,931,000.00, inasmuch as we have
that liability and I was shown the order of President Marcos to
pay P5 million through the Office of the President, I considered
the order of Mr. Luis Tabuena, the order of President Marcos and
also the existing liability of P27 million sufficient to pay the
amount of P5 million. Inasmuch as there is also an escalation
clause of P99.1 million, the payment of P5 million is fully covered
by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an
adequate basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary
documents and at that time I know for a fact that there was this
existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to
the question being asked and not to whatever you wanted to
say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a
liability and I was shown the Order of President Marcos to pay
PNCC through his office, I feel that the order of the General
Manager, the order of President Marcos, and also the
memorandum of Minister Ongpin are sufficient to cause the
payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the
Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the
President is authorized through a Presidential Decree to transfer
government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay
the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are
you just throwing words at us in the hope that we will forget what
the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA are covered by
the Appropriations Act so that the payment of this debt would be
in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers
and different officials in any company either government or
private, which are supposed to check and balance each other, is
it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain
him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it., if
in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as co-signatory, you are expected to exercise your
judgment as to the propriety of a particular transaction?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such
amount was being disposed of?
A A written protest was not made, your Honor, but I called the
attention of Mr. Tabuena that since this payment was upon the
order of President Marcos, then I think as President he can do
things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary
transaction?
A I called the attention of Mr. Tabuena that this was an extra-
ordinary transaction and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x.[43]
This Court has acknowledged the right of a trial judge to question witnesses
with a view to satisfying his mind upon any material point which presents itself
during the trial of a case over which he presides.[44] But not only should his
examination be limited to asking clarificatory questions,[45] the right should be
sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the
trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid
the impression that the Sandiganbayan had allied itself with, or to be more
precise, had taken the cudgels for the prosecution in proving the case against
Tabuena and Peralta when the Justices cross-examined the witnesses, their
cross-examinations supplementing those made by Prosecutor Viernes and far
exceeding the latters questions in length. The cold neutrality of an impartial
judge requirement of due process was certainly denied Tabuena and Peralta
when the court, with its overzealousness, assumed the dual role of magistrate
and advocate. In this connection, the observation made in the Dissenting Opinion
to the effect that the majority of this Court was unduly disturbed with the
number of court questions alone, is quite inaccurate. A substantial portion of the
TSN was incorporated in the majority opinion not to focus on numbers alone,
but more importantly to show that the court questions were in the interest of the
prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records,
confronted with numbers without necessarily realizing the partiality of the
Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial
was required because the trial judge, as in this case, indulged in extensive
questioning of defendant and his witnesses, and the reviewing court also had to
amplify on numbers to bolster this. It was pointed out in the De Sisto case
that the judge asked 3,115 questions of all witnesses, the prosecutor asked but
1,381, defense counsel 3,330. The judges questions to the defendant De Sisto
totalled 306, the prosecutors 347, and the defense counsels, 201. After
referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of
itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendants efforts to establish the time that Fine left the pier, we fear that in its
zeal for arriving at the facts the court here conveyed to the jury too strong an impression
of the courts belief in the defendants probable guilt to permit the jury freely to perform
its own function of independent determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices
was just too excessive that it cannot be justified under the norm applied to a jury
trial, or even under the standard employed in a non-jury trial where the judge is
admittedly given more leeway in propounding questions to clarify points and to
elicit additional relevant evidence. At the risk of being repetitious, we will amplify
on this via some specific examples. Based on the evidence on record, and on
the admission of Tabuena himself, the P55 million was delivered to the
Presidents Office thru Mrs. Gimenez, in obedience to the Presidential directive.
One Sandiganbayan Justice, however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that
was very close to the election held in that year, did you not
entertain any doubt that the amounts were being used for some
other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are
objecting to the question on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and
secondly, I dont think there was any basis, Your
Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would
serve as basis for this question. How then, can this be considered even
relevant? What is the connection between the payment made to the Presidents
office and the then forthcoming presidential snap election? In another instance,
consider the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made
in the same journal?
xxx
*Q In other words, really what you are telling us is that, a Journal
Voucher is to explain a transaction was otherwise not recorded.
xxx
*Q Therefore, when you said that a Journal Voucher here is proper,
you are saying it is proper only because of the exceptional nature
of the transactions?
xxx
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be
coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was
supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of
the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate
basis for the movement of money?
*Q We are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the
movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an
adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to
the question being asked and not to whatever you wanted to
say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the
Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are
you just throwing words at us in the hope that we will forget what
the question is?
xxx
*Q Are you telling us that the debts incurred by MIAA are covered by
the Appropriations Act so that the payment of this debt would be
in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different officers
and different officials in any company either government or
private, which are supposed to check and balance each other, is
it not?
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain
him?
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it., if
in your opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your
judgment as to the propriety of a particular transaction?
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?[47]
How can these questions be considered clarificatory when they clearly
border more on cross-examination questions? Thus, the Dissenting Opinions
focus on the distinction between the two kinds of trial to justify the
Sandiganbayans active participation in the examination of petitioners Tabuena
and Peralta and witness Monera, with due respect, appears insignificant to this
case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.[48]
We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting
attorney. However anxious a judge may be for the enforcement of the law, he should
always remember that he is as much judge in behalf of the defendant accused of crime,
and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of
safeguarding the interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at
length. The circumstances may be such in a given case as to justify the court in so
doing....This court, however, has more than once said that the examination of witnesses is
the more appropriate function of counsel, and the instances are rare and the conditions
exceptional which will justify the presiding judge in conducting an extensive
examination. It is always embarrassing for counsel to object to what he may deem
improper questions by the court. Then, in conducting a lengthy examination, it would be
almost impossible for the judge to preserve a judicial attitude. While he is not a mere
figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually
not find it necessary to conduct such examinations. The extent to which this shall be
done must largely be a matter of discretion, to be determined by the circumstances of
each particular case, but in so doing he must not forget the function of the judge and
assume that of an advocate....[50]
While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays....The judge is an important figure in the trial of a cause, and while he
has the right, and it is often his duty, to question witnesses to the end that justice shall
prevail, we can conceive of no other reason, for him to take the trial of the cause out of
the hands of counsel.[51]
The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree which will
justify the presiding judge in entering upon and conducting an extended examination of a
witness, and that the exercise of a sound discretion will seldom deem such action
necessary or advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in
mind that his undue interference, impatience, or participation in the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper
presentation of the cause, or the ascertainment of the truth in respect thereto.[53]
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental and
essential rule of special importance in criminal cases....[54]
Our courts, while never unmindful of their primary duty to administer justice, without
fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is
possible for the court and the parties, should refrain from showing any semblance of one-
sided or more or less partial attitude in order not to create any false impression in the
minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the
preservation of the peoples faith in our courts.[55]
Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. Bolstering this requirement, we have added that the
judge must not only be impartial but must also appear to be impartial, to give added
assurance to the parties that his decision will be just. The parties are entitled to no less
than this, as a minimum guaranty of due process.[56]
We are well aware of the fear entertained by some that this decision may
set a dangerous precedent in that those guilty of enriching themselves at the
expense of the public would be able to escape criminal liability by the mere
expedient of invoking good faith. It must never be forgotten, however, that we
render justice on a case to case basis, always in consideration of the evidence
that is presented. Thus, where the evidence warrants an acquittal, as in this
case, we are mandated not only by the dictates of law but likewise of conscience
to grant the same. On the other hand, it does not follow that all those similarly
accused will necessarily be acquitted upon reliance on this case as a precedent.
For the decision in this case to be a precedent, the peculiar circumstances and
the evidence that led to the petitioners acquittal must also be present in
subsequent cases.
Furthermore, as between a mere apprehension of a dangerous precedent
and an actual violation of constitutionally enshrined rights, it is definitely the latter
that merits our immediate attention. For the most dangerous precedent arises
when we allow ourselves to be carried away by such fears so that it becomes
lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to
bring to justice the malefactors of the Marcos regime, we must not succumb to
the temptation to commit the greatest injustice of visiting the sins of the
wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena
and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as
defined and penalized under Article 217 of the Revised Penal Code. The
Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
G.R. No. L-46096 July 30, 1979
EUFEMIO T. CORREA, petitioner, vs. COURT OF FIRST INSTANCE OF
BULACAN (BRANCH 11), CITY SHERIFF OF QUEZON CITY, MUNICIPALITY
OF NORZAGARAY, BULACAN, HON. ARMANDO ENRIQUEZ, as the
Incumbent Mayor of Norzagaray, Bulacan, CANDIDO P. CRUZ, ISABELO
SAPLALA, TOMAS PALAD, ANTONIO SILVERIO, MELANIO ESTEBAN,
ELIGIO PUNZAL, CELEDONIO PRINCIPE, ANTONIO ANCHETA, and
JUANITO SARMIENTO, respondents.
Magtanggol C. Gunigundo for petitioner.
Ponciano G. Hernandez for private respondents.

ANTONIO, J .:1wph1.t
Petition for certiorari, prohibition and declaratory relief assailing the Order dated
April 22, 1977 of respondent Court of First Instance of Bulacan, Branch II,
denying petitioner's Motion to Quash Writ of Execution issued in Civil Case No.
3621- M. The following are the relevant facts:
On December 13, 1968, respondent Court rendered judg- ment in Civil Case No.
3621-M in favor of therein plaintiffs (private respondents herein) and adversely
against therein defendants Eufemio T. Correa (petitioner herein) and Virgilio
Sarmiento. The pertinent portions of the decision read as follows: t.hqw
This Court finds that defendants Eufemio T. Correa and Virgilio Sarmiento,
municipal mayor and municipal treasurer of Norzagaray, Bulacan respectively,
should be ordered personally to pay the salaries which the plaintiffs failed to
receive by reason of their illegal removal from office until they are actually
reinstated.
xxx xxx xxx
WHEREFORE, judgment is hereby rendered:
1. Permanently enjoining the defendants from enforcing and/or implementing the
Administrative Order No. 1, Series of 1968;
2. Declaring the termination of the services of the plaintiffs illegal and of no legal
effect;
3. Ordering the defendant Eufemio T. Correa to reinstate the plaintiffs to their
former position as policemen in the Police Force of Norzagaray, Bulacan;
4. Ordering the defendants Eufemio T. Correa and Virgilio Sarmiento to pay,
jointly and severally to the plaintiff Juanito Sarmiento his salary for the period
beginning January 15, 1968, plaintiff Melanio Esteban his said for the period
beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas
Palad; Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe
their salaries for the period beginning January 23, 1968, until they are actually
reinstated to their former positions;
5. Ordering defendant Eufemio T. Correa and Virgilio Sarmiento to pay, jointly
and severally, the costs of this suit.
SO ORDERED.
The aforesaid decision was affirmed by the Court of Appeals on March 22, 1976,
and the motion for reconsideration of the Appellate Court's decision was denied
on May 11, 1976. On August 24, 1976, the decision of the Court of Appeals
became final and executory.
1

It is in connection with the efforts of the petitioner to quash the writ of execution
issued to enforce the aforestated final judgment that the present proceedings
arose. Thus, on March 8, 1977, petitioner filed a Motion to Quash the Writ of
Execution and to Direct Execution to the Municipality of Norzagaray, Bulacan,
alleging that at the time the writ was served on him, he was no longer mayor of
Norzagaray, Bulacan. Petitioner invoked the principle that when judgment is
rendered against an officer of the municipal corporation who is sued in his official
capacity for the payment of back salaries of officers illegally removed, the
judgment is binding upon the corporation, whether or not the same is included as
party to the action.
2

On April 22, 1977, respondent Court issued the Order denying the Motion to
Quash Writ of Execution. Petitioner thus came to this Court, maintaining that he
could no longer be required to pay the back salaries of the private respondents
because payment on his part presupposes his continuance in office, which is not
the case. He contends that it is the Municipality of Norzagaray that is liable for
said payment, invoking Aguador v. Enerio.
3
and Sison v. Pajo
4
Further,
petitioner alleges that the fact that he is no longer municipal mayor of
Norzagaray, constitutes a substantial change in the situation of the parties which
makes the issuance of the writ of execution inequitable.
Petitioner prays, among others, that judgment be rendered declaring that the
payment of back salaries of private respondents should be made by the
incumbent mayor and by the municipality of Norzagaray, Bulacan, and that
petitioner is no longer liable for the payment thereof; and annulling the Order
dated April 22, 1977 of respondent court denying the motion to quash the writ of
execution.
On May 24, 1977, this Court required petitioner to implead the Municipality of
Norzagaray, Bulacan as party respondent and on June 25, 1977, petitioner filed
an amended petition impleading the Municipality of Norzagaray and Amando
Enriquez, the incumbent municipal mayor.
In his amended petition, petitioner alleges that the writ of execution is already
being enforced against the personal properties of petitioner; that such
enforcement during the pendency of the instant petition would probably work
injustice to petitioner; and that petitioner stands to suffer great and irreparable
injury if enforcement of the writ is not temporarily restrained. Petitioner, therefore,
prays that the execution be stayed or a temporary restraining order be issued
pending resolution of the instant proceedings.
On August 1, 1977, private respondents filed their Comment maintaining that
respondent court acted correctly and committed no abuse of discretion when it
denied petitioner's motion to quash the writ of execution, (1) it being the
ministerial duty of the trial court to issue a writ for the enforcement of a final and
executory judgment; and (2) since the personal liability of the petitioner and his
co-defendant to pay the back salaries of the private respondents as mandated in
the decision sought to be executed cannot be shifted or transferred to the
municipality of Norzagaray, Bulacan, for to do so would be to vary the terms of a
final judgment. On August 12, 1977, this Court resolved to consider the
Comment of respondents as answer to the petition and required the parties to file
their respective memoranda, and thereafter the case was submitted for decision.
The issue is whether or not respondent Court in denying the Motion to Quash the
Writ of Execution acted with grave abuse of discretion or with lack or excess of
jurisdiction.
It cannot be denied that both the judgments of the Court of First Instance of
Bulacan and of the Court of Appeals categorically state that the liability of herein
petitioner is personal. Thus, according to the trial court, "Eufemio T. Correa and
Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray,
Bulacan, respectively, should be ordered personally to pay the salaries which the
plaintiffs failed to receive by reason of their illegal removal from office until they
are actually reinstated." (Emphasis supplied).
In affirming the decision of the trial court, the Court of Appeals
5
ruled that "The
defendants are personally liable jointly and severally because they acted without
justifiable cause (Nemenzo vs. Sabillano, Sept. 7, 1968, 25 SCRA 1)."
6

The jurisprudence relied upon by the petitioner in his effort to shift the
responsibility to the Municipality of Norzagaray appears inapplicable. In Aguador
v. Enerio, supra, cited by petitioner, the municipal mayor and the members of the
Municipal Council of Oroquieta were specifically ordered "to appropriate
necessary amounts to pay the salary differentials for the petitioners and also for
the payment of their entire salaries from month to month, subject naturally to the
availability of funds after all statutory and subsisting contractual obligations shall
have been properly covered by adequate appropriations. " The issue raised was
whether or not, after the municipal mayor, members of the municipal council and
the municipal treasurer were expressly made parties in the mandamus case and
in the contempt proceedings, it was necessary to include the municipality as a
party, to make the latter liable. This issue was resolved in the negative by this
Court. In the case of Sison v. Pajo, supra, the trial court directed the Acting
Municipal Mayor and Acting Chief of Police of Bamban, Tarlac to reinstate
Bonifacio Lacanlale as Acting Chief of Police, effective June 30, 1957 "with the
incident of payment of back salaries by the Municipality of Bamban." The issue
was whether or not the municipality of Bamban could be ordered to pay the back
salaries of the Chief of Police, it appearing that said municipality was not
impleaded in the case. This Court ruled that the fact that the Municipality of
Bamban, Tarlac was not by name impleaded in the case of reinstatement and
back salaries does not affect the employee's right to the payment of back
salaries, considering that the officers required by law to represent the
municipality in an suits were made parties in their official capacity, hence the
case was heard and decided as if the municipality had been made a party. In
both eases the judgment of the Court specifically directed the municipality to pay
the back salaries.
Here, the judgment of the trial court, which was affirmed by the Court of Appeals,
found petitioners Eufemio T. Correa and Virgilio Sarmiento personally liable for
the payment of the salaries which the dismissed policemen failed to receive
because of their illegal removal from office, and ordered them "to pay jointly and
severally to the plaintiff Juanito Sarmiento his salary for the period beginning
January 15, 1968; plaintiff Melanio Esteban his salary for the period beginning
February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas Palad,
Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their
salaries for the period beginning January 23, 1968, until they are actually
reinstated to their former positions."
In Nemenzo vs. Sabillano,
7
the Court ruled that appellant Municipal Mayor
Bernabe Sabillano was "correctly adjudged liable" for the payment of the back
salaries of appellee Police Corporal Joaquin P. Nemenzo because his act of
dismissing appellee "without previous administrative investigation and without
justifiable cause ... is clearly an injury to appellee's rights. Appellant cannot hide
under the mantle of his official capacity and pass the liability to the municipality of
which he was mayor. There are altogether too many cases of this nature,
wherein local elective officials, upon assumption of office, wield their new-found
power indiscriminately by replacing employees with their own proteges,
regardless of the laws and regulations governing the civil service. Victory at the
polls should not be taken as authority for the commission of such illegal acts."
In the discharge of govermental functions, "municipal corporations are
responsible for the acts of its officers, except if and when and only to the extent
that , they have acted by authority of the law, and in comformity with the
requirements thereof."
8

A Public officer who commits a tort or other wrongful act, done in excess or
beyond the scope of his duty, is not protected by his office and is personally
liable therefor lie any private individual.
9
This principle of personal liability has
been applied to cases where a public officer removes another officer or
discharges an employee wrongfully, the reported cases saying that by reason of
non-compliance with the requirements of law in respect to removal from office,
the officials were acting outside their official authority."
10

Respondent Court, therefore, did not commit grave abuse of discretion in
denying petitioner's motion to quash writ of execution. The writ was strictly in
accordance with the terms of the judgment.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against
petitioner.
[G.R. No.114683. January 18, 2000]
JESUS C. OCAMPO, petitioner, vs. OFFICE OF THE OMBUDSMAN and
MAXIMO ECLIPSE, respondents.
D E C I S I O N
BUENA, J .:
This petition for certiorari seeks to nullify the Resolutions of the Ombudsman in OMB-
Adm-O-92-0020 dated November 18, 1993[1] and February 28, 1994[2] which dismissed
petitioner from the service, with forfeiture of benefits and special perpetual
disqualification to hold office in the government or any government-owned or controlled
corporation, and which denied the motion for reconsideration thereof, respectively.
The facts are as follows:
Petitioner is the Training Coordinator of. NIACONSULT, INC., a subsidiary of the
National Irrigation Administration.
On March 21, 1988, K.N. Paudel of the Agricultural Development Bank of Nepal
(ADBN) wrote a letter to NIACONSULT requesting a training proposal on small-scale
community irrigation development.[3]
On November 17, 1988, petitioner as the training coordinator of the NIACONSULT, sent
a letter-proposal requested by ABDN.[4] Another letter was sent by petitioner on January
31, 1989 to Dr. Peiter Roeloffs of ADBN confirming the availability of NIACONSULT
to conduct the training program and formally requesting advance payment of thirty (30%)
percent of the training fees[5] in the amount of US $9,600.00 or P204,960.00.
NIACONSULT conducted the training program for six Nepalese Junior Engineers from
February 6 to March 7, 1989.[6] ADBN, thru its representative, Deutsche Gesselschaft )
Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal
Republic of Germany paid to the petitioner the agreed training fee in two installments of
P61,488.00 and P143,472.00.[7]
On April 1, 1991, NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a
letter to petitioner demanding the turn-over of the total training fee paid by ADBN which
petitioner personally received.[8] Despite receipt of the letter, petitioner failed to remit
the said amount prompting NIACONSULT through its president, Maximino Eclipse, to
file an administrative case before respondent OMBUDSMAN for serious misconduct
and/or fraud or willful breach of trust.[9] U1* Z1
Finding enough basis to proceed with the administrative case, the Administrative
Adjudication Bureau of the respondent OMBUDSMAN, on February 17, 1992, issued an
order[10] requiring petitioner to file his counter-affidavit within ten (10) days from
receipt with a caveat that failure to file the same would be deemed a waiver of his right to
present evidence. Despite notice, petitioner failed to comply with the said order.
A year later, or on March 17, 1993, respondent OMBUDSMAN issued another order[11]
giving petitioner another chance to file his counter-affidavit and controverting evidence.
Again, petitioner failed. Thus, on April 14, 1993, private respondent was required to
appear before the OMBUDSMAN to present evidence to support its complaint.[12]
Thereafter, on November 18, 1993, respondent OMBUDSMAN issued the assailed
Resolution, the decretal portion of which reads:
"Withal, for such dishonesty, untrustworthiness, and conduct
prejudicial to the service as established by overwhelming evidences,
it is respectfully recommended that respondent Jesus C. Ocampo be
discharged from the service, with forfeiture of benefits and special
perpetual disqualification to hold office in the government or any
government-owned or controlled corporation; without prejudice to
any civil action NIACONSULT, Inc., may institute to recover the
amount so retained by the respondent.
SO ORDERED."[13]
On February 16, 1994 petitioner moved for reconsideration and to re-open the case
claiming that he was denied due process in that the administrative case was resolved on
the basis of the complainant's evidences, without affording him the opportunity to file a
counter-affidavit and to present his evidence. Petitioner likewise contends that he was not
given access to the records of the subject transaction vital to his defense and in the
preparation of his counter-affidavit despite his verbal requests to the graft
investigator.[14]
The respondent OMBUDSMAN denied the motion on February 28, 1994.[15]
Aggrieved, petitioner filed the instant petition basically reiterating his arguments in his
motion for reconsideration.
We gave due course to the petition and required the parties to submit their respective
memoranda.
While the case is pending, petitioner filed a Manifestation on May 24, 1997[16] stating
that the criminal complaint for estafa and falsification filed against him based on the
same facts or incidents which gave rise to the administrative case, was dismissed by the
Regional Trial Court on February 24, 1997. With the dismissal of the criminal case,
petitioner manifests that the administrative case can no longer stand on its own and
therefore should be dismissed.[17]
Such manifestation is not well taken. 1*' =L
The dismissal of the criminal case will not foreclose administrative action filed against
petitioner or give him a clean bill of health in all respects. The Regional Trial Court, in
dismissing the criminal complaint, was simply saying that the prosecution was unable to
prove the guilt of petitioner beyond reasonable doubt, a condition sine qua non for
conviction. The lack or absence of proof beyond reasonable doubt does not mean an
absence of any evidence whatsoever for there is another class of evidence which, though
insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is
preponderance of evidence. Then too, there is the "substantial evidence" rule in
administrative proceedings which merely requires such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.[18] Thus, considering the
difference in the quantum of evidence, as well as the procedure followed and the
sanctions imposed in criminal and administrative proceedings, the findings and
conclusions in one should not necessarily be binding on the other.[19]
Going now to the crux of the controversy, petitioner asserts that he was denied the
opportunity to be heard.
The essence of due process is an opportunity to be heard. One may be heard, not solely
by verbal presentation but also, and perhaps even many times more creditably and
practicable than oral argument, through pleadings. In administrative proceedings,
moreover, technical rules of procedure and evidence are not strictly applied;
administrative due process cannot be fully equated to due process in its strict judicial
sense.[20]
Petitioner has been amply accorded the opportunity to be heard. He was required to
answer the complaint against him. In fact, petitioner was given considerable length of
time to submit his counter-affidavit. It took more than one year from February 17, 1992
before petitioner was considered to have waived his right to file his counter-affidavit and
the formal presentation of the complainant's evidence was set. The March 17, 1993 order
was issued to give the petitioner a last chance to present his defense, despite the private
respondent's objections. But petitioner failed to comply with the second
order. | 11
Thus, petitioner's failure to present evidence is solely of his own making and cannot
escape his own remissness by passing the blame on the graft investigator. While the
respondent OMBUDSMAN has shown forebearance, petitioner has not displayed
corresponding vigilance. He therefore cannot validly claim that his right to due process
was violated. We need only to reiterate that a party who chooses not to avail of the
opportunity to answer the charges cannot complain of a denial of due process.[21]
Petitioner's claim that he was not given any notice of the order declaring him to have
waived his right to file his counter-affidavit and of allowing the private respondent to
present evidence ex-parte is unmeritorious.
The orders of respondent OMBUDSMAN requiring petitioner to submit his counter-
affidavit and which was admittedly received by the latter explicitly contain a warning that
if no counter-affidavit was filed within the given period, a waiver would be considered
and the administrative proceedings shall continue according to the rules. Thus,
respondent OMBUDSMAN need not issue another order notifying petitioner that he has
waived his right to file a counter-affidavit. In the same way, petitioner need not be
notified of the ex-parte hearing for the reception of private respondent's evidence. As
such, he could not have been expected to appear at the ex-parte hearing.
With regard to the petitioner's claim that he made requests for the production of the
documents alleged to be material to his defense, the record is bereft of any proof of such
requests. If it were true that the graft investigator did not act on such requests, petitioner
should have filed the proper motion before the respondent OMBUDSMAN for the
production of the documents or to compel the respondent complainant to produce
whatever record necessary for his defense. Petitioner did not. It was only after the
respondent OMBUDSMAN issued the assailed resolution of November 18, 1993 that he
bewailed the alleged failure of respondent's graft investigator to require the production of
the records of the subject transaction.
The record of this case indisputably shows that petitioner is guilty of dishonesty and
conduct prejudicial to the government when he failed to remit the payment of the training
program conducted by NIACONSULT. The evidence presented sufficiently established
that petitioner received the payments of ADBN through its representative, GTZ,
Philippines the amount of US $9,600.00 and that he failed to account this and remit the
same to the corporation. All these acts constitute dishonesty and untrustworthiness.
WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed
Resolutions of the respondent OMBUDSMAN are hereby AFFIRMED.
SO ORDERED.
[G.R. No. 130872. March 25, 1999]
FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
BELLOSILLO, J .:
FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were
convicted by the Sandiganbayan of thirteen (13) counts of estafa through falsification of
public documents.[1] They now seek a review of their conviction as they insist on their
innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz,
Marinduque, while his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman
of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa
Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the
Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red[2] won as KB
Chairman of Barangay Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz did not run
as candidate in this electoral exercise as he was no longer qualified for the position after
having already passed the age limit fixed by law.
Sometime in November 1985 Red was appointed by then President Ferdinand
Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the
municipality. Imee Marcos-Manotoc, then the National Chairperson of the organization,
sent a telegram to Red confirming his appointment and advising him further that copies
of his appointment papers would be sent to him in due time through the KB Regional
Office.[3] Red received the telegram on 2 January 1986 and showed it immediately to
Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of
sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian
upon the invitation of one of its members, Kagawad Rogato Lumawig. In that meeting,
Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the
municipal council until his appointment had been cleared by the Governor of
Marinduque. Nonetheless, the telegram was included in the agenda as one of the subjects
discussed in the meeting.
Red finally received his appointment papers sometime in January 1986.[4] But it
was only on 23 April 1986, when then President Corazon C. Aquino was already in
power,[5] that he forwarded these documents to Mayor Lecaroz. This notwithstanding,
Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment
to Lenlie Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas
covering the period 16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the
payroll for 1-15 January 1986 and then authorized someone else to sign all the other
payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he
received his appointment papers from President Marcos, Red was finally able to secure
from the Aquino Administration a confirmation of his appointment as KB Sectoral
Representative to the Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal
complaints against Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal
of the two officials to let him assume the position of KB sectoral representative. After
preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13)
Informations for estafa through falsification of public documents against petitioners, and
one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and
Corrupt Practices Act, against Mayor Lecaroz alone.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2)
accused guilty on all counts of estafa through falsification of public documents and
sentenced each of them to -
a) imprisonment for an indeterminate period ranging from a minimum of
FIVE (5) YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of
prision correccional to a maximum of TEN (10) YEARS AND ONE (1)
DAY of prison mayor FOR EACH OF THE ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH
OF THE ABOVE CASES or a total of SIXTY-FIVE THOUSAND
PESOS (P65,000), and
c) perpetual special disqualification from public office in accordance with
Art. 214 of the Revised Penal Code.
x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND
SIX HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained,
to the Municipality of Sta. Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took
his oath of office sometime in 1985 before then Assemblywoman Carmencita O. Reyes
his assumption of the KB presidency upon the expiration of the term of accused Lenlie
Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the
KB on the last Sunday of November 1985 and, as such, was no longer the legitimate
representative of the youth sector in the municipal council of Sta. Cruz, Marinduque.
In convicting both accused on the falsification charges, the Sandiganbayan
elucidated -
x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of
his son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz
for the payroll period starting January 15, 1986, reinstating accused LENLIE LECAROZ
to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he
certified that LENLIE LECAROZ was a member of the Sangguniang Bayan. The fact is
that even accused LENLIE LECAROZ himself no longer attended the sessions of the
Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986,
did not personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code
which reads:
Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. -
The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon
any public officer, employee, or notary public who, taking advantage of his official
position, shall falsify a document by committing any of the following acts: x x x x 4.
Making untruthful statements in a narration of facts.
x x x x
Clearly, falsification of public documents has been committed by accused MAYOR
LECAROZ.
Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able
to draw salaries from the municipality to which he was not entitled for services he had
admittedly not rendered. This constitutes Estafa x x x x the deceit being the falsification
made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque
for having paid salaries to LENLIE LECAROZ who was not entitled thereto.
Conspiracy was alleged in the Informations herein, and the Court found the allegation
sufficiently substantiated by the evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ should have reinstated
his son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet
he did so. He could not have had any other purpose than to enable his son LENLIE to
draw salaries thereby. This conclusion is inescapable considering that the very purpose
of a payroll is precisely that -- to authorize the payment of salaries. And LENLIE
LECAROZ did his part by actually drawing the salaries during the periods covered, albeit
through another person whom he had authorized.
By the facts proven, there was conspiracy in the commission of Estafa between father and
son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019,
the Sandiganbayan acquitted Mayor Francisco Lecaroz. It found that Red was neither
authorized to sit as member of the SB because he was not properly appointed thereto nor
had he shown to the mayor sufficient basis for his alleged right to a seat in the municipal
council. On this basis, the court a quo concluded that Mayor Lecaroz was legally
justified in not allowing Red to assume the position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its
decision filed by the accused. This prompted herein petitioners to elevate their cause to
us charging that the Sandiganbayan erred:
First, in holding that Red had validly and effectively assumed the office of KB
Federation President by virtue of his oath taken before then Assemblywoman Carmencita
Reyes on 27 September 1985, and in concluding that the tenure of accused Lenlie
Lecaroz as president of the KB and his coterminous term of office as KB representative
to the SB had accordingly expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as
youth representative to the SB had expired, in holding that accused Lenlie Lecaroz could
no longer occupy the office, even in a holdover capacity, despite the vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation
president had expired, in holding that by reason thereof accused Lenlie Lecaroz became
legally disqualified from continuing in office as KB Sectoral Representative to the SB
even in a holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant
to the provisions of the pertinent Ministry of Interior and Local Governments (MILG)
interpretative circulars, accused Lenlie Lecaroz was legally entitled and even mandated to
continue in office in a holdover capacity;
Fifth, in holding that the accused had committed the crime of falsification within
the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the
crime of estafa of which they had been convicted required criminal intent and malice as
essential elements;
Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled
to hold over, still the trial court erred in not holding - considering the difficult legal
questions involved - that the accused acted in good faith and committed merely an error
of judgment, without malice and criminal intent; and,
Seventh, in convicting the accused for crimes committed in a manner different from
that alleged in the Information under which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon which the Sandiganbayan
premised its conviction of the accused are: (a) although Jowil Red was duly elected KB
Chairman he could not validly assume a seat in the Sanggunian as KB sectoral
representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was
the incumbent KB representative could not hold over after his term expired because
pertinent laws do not provide for holdover.
To resolve these issues, it is necessary to refer to the laws on the terms of office of
KB youth sectoral representatives to the SB and of the KB Federation Presidents.
Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide -
Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall
commence on the first Monday of March 1980.
In the case of the members of the sanggunian representing the association of barangay
councils and the president of the federation of kabataang barangay, their terms of office
shall be coterminous with their tenure is president of their respective association and
federation .
x x x x
Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office
until the last Sunday of November 1985 or such time that the newly elected officers shall
have qualified and assumed office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative
to the SB since he did not present an authenticated copy of his appointment papers;
neither did he take a valid oath of office. Resultantly, this enabled petitioner Lenlie
Lecaroz to continue as member of the SB although in a holdover capacity since his term
had already expired. The Sandiganbayan however rejected this postulate declaring that
the holdover provision under Sec. 1 quoted above pertains only to positions in the KB,
clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there
can be no holdover with respect to positions in the SB.
We disagree with the Sandiganbayan. The concept of holdover when applied to a
public officer implies that the office has a fixed term and the incumbent is holding onto
the succeeding term.[6] It is usually provided by law that officers elected or appointed for
a fixed term shall remain in office not only for that term but until their successors have
been elected and qualified. Where this provision is found, the office does not become
vacant upon the expiration of the term if there is no successor elected and qualified to
assume it, but the present incumbent will carry over until his successor is elected and
qualified, even though it be beyond the term fixed by law.[7]
In the instant case, although BP Blg. 51 does not say that a Sanggunian member can
continue to occupy his post after the expiration of his term in case his successor fails to
qualify, it does not also say that he is proscribed from holding over. Absent an express or
implied constitutional or statutory provision to the contrary, an officer is entitled to stay
in office until his successor is appointed or chosen and has qualified.[8] The legislative
intent of not allowing holdover must be clearly expressed or at least implied in the
legislative enactment,[9] otherwise it is reasonable to assume that the law-making body
favors the same.
Indeed, the law abhors a vacuum in public offices,[10] and courts generally indulge
in the strong presumption against a legislative intent to create, by statute, a condition
which may result in an executive or administrative office becoming, for any period of
time, wholly vacant or unoccupied by one lawfully authorized to exercise its
functions.[11] This is founded on obvious considerations of public policy, for the
principle of holdover is specifically intended to prevent public convenience from
suffering because of a vacancy[12] and to avoid a hiatus in the performance of
government functions.[13]
The Sandiganbayan maintained that by taking his oath of office before
Assemblywoman Reyes in 1985 Red validly assumed the presidency of the KB upon the
expiration of the term of Lenlie Lecaroz. It should be noted however that under the
provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof,
members of the then Batasang Pambansa were not authorized to administer oaths. It was
only after the approval of RA No. 6733[14]on 25 July 1989 and its subsequent
publication in a newspaper of general circulation that members of both Houses of
Congress were vested for the first time with the general authority to administer oaths.
Clearly, under this circumstance, the oath of office taken by Jowil Red before a member
of the Batasang Pambansa who had no authority to administer oaths, was invalid and
amounted to no oath at all.
To be sure, an oath of office is a qualifying requirement for a public office; a
prerequisite to the full investiture with the office.[15] Only when the public officer has
satisfied the prerequisite of oath that his right to enter into the position becomes plenary
and complete. Until then, he has none at all. And for as long as he has not qualified, the
holdover officer is the rightful occupant. It is thus clear in the present case that since Red
never qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the
Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer,[16]
or at least a de facto officer[17] entitled to receive the salaries and all the emoluments
appertaining to the position. As such, he could not be considered an intruder and liable
for encroachment of public office.[18]
On the issue of criminal liability of petitioners, clearly the offenses of which
petitioners were convicted, i.e., estafa through falsification of public documents under
Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which liability
attaches only when it is shown that the malefactors acted with criminal intent or
malice.[19] If what is proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be rightfully imputed to him. Was
criminal intent then demonstrated to justify petitioners' conviction? It does not so appear
in the case at bar.
Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting. As a general rule, ignorance or mistake as to particular facts, honest and real,
will exempt the doer from felonious responsibility. The exception of course is neglect in
the discharge of a duty or indifference to consequences, which is equivalent to a criminal
intent, for in this instance, the element of malicious intent is supplied by the element of
negligence and imprudence[20] In the instant case, there are clear manifestations of good
faith and lack of criminal intent on the part of petitioners.
First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January
1986, what he presented to Mayor Francisco Lecaroz was a mere telegram purportedly
sent by Imee Marcos-Manotoc informing him of his supposed appointment to the SB,
together with a photocopy of a "Mass Appointment." Without authenticated copies of the
appointment papers, Red had no right to assume office as KB representative to the
Sanggunian, and petitioner Mayor Lecaroz had every right to withhold recognition, as he
did, of Red as a member of the Sanggunian.
Second. It appears from the records that although Red received his appointment
papers signed by President Marcos in January 1986, he forwarded the same to Mayor
Francisco Lecaroz only on 23 April 1986 during which time President Marcos had
already been deposed and President Aquino had already taken over the helm of
government. On 25 March 1986 the Freedom Constitution came into being providing in
Sec. 2 of Art. III thereof that -
Sec. 2. All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by. proclamation or executive order or
upon the designation of their successors if such appointment is made within a period of
one (1) year from February 26, 1986 (underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz
through the provincial governor forwarded the papers of Jowil Red to then Minister of
Interior and Local Government Aquilino Pimentel, Jr., requesting advice on the validity
of the appointment signed by former President Marcos. The response was the issuance of
MILG Provincial Memorandum-Circular No. 86-02[21] and Memorandum-Circular No.
86-17[22] stating that -
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2. That newly elected KB Federation Presidents, without their respective authenticated
appointments from the president, cannot, in any way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still
considered presidents of their federations by virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the Office of the President or by this
Ministry the appointive members of the various Sangguniang Bayan, Sangguniang
Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to
receive compensation due them under existing laws, rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MILG
Circulars virtually confirmed the right of incumbent KB Federation Presidents to hold
and maintain their positions until duly replaced either by the President herself or by the
Interior Ministry. Explicit therein was the caveat that newly elected KB Federation
Presidents could not assume the right to represent their respective associations in any
Sanggunian unless their appointments were authenticated by then President Aquino
herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the
legitimacy of Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of
Justice of Presidents Macapagal, Marcos and Aquino concerning the doctrine of
holdover. This consistently expressed the view espoused by the executive branch for
more than thirty (30) years that the mere fixing of the term of office in a statute without
an express prohibition against holdover is not indicative of a legislative intent to prohibit
it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor
a vacancy in the government.[23] Reliance by petitioners on these opinions, as well as on
the pertinent directives of the then Ministry of Interior and Local Government, provided
them with an unassailable status of good faith in holding over and acting on such basis;
and,
Fourth. It is difficult to accept that a person, particularly one who is highly
regarded and respected in the community, would deliberately blemish his good name, and
worse, involve his own son in a misconduct for a measly sum of P23,675.00, such as this
case before us. As aptly deduced by Justice Del Rosario[24]
If I were to commit a crime, would I involve my son in it? And if I were a town mayor,
would I ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a
father to protect my own son and the desire, basic in every man, to preserve one's honor
and reputation would suggest a resounding NO to both questions. But the prosecution
ventured to prove in these thirteen cases that precisely because they were father and son
and despite the relatively small amount involved, accused Mayor Francisco Lecaroz
conspired with Lenlie Lecaroz to falsify several municipal payrolls for the purpose of
swindling their own town of the amount of P1,894.00 a month, and the majority has
found them guilty. I find discomfort with this verdict basically for the reason that there
was no criminal intent on their part to falsify any document or to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the
basis of good faith.[25] In Cabungcal v. Cordova[26] we affirmed the doctrine that an
erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor
does not amount to bad faith that would entitle an aggrieved party to damages against that
official. We reiterated this principle in Mabutol v. Pascual[27] which held that public
officials may not be liable for damages in the discharge of their official functions absent
any bad faith. Sanders v. Veridiano II[28] expanded the concept by declaring that under
the law on public officers, acts done in the performance of official duty are protected by
the presumption of good faith.
In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan
cited two (2) circumstances which purportedly indicated criminal intent. It pointed out
that the name of accused Lenlie Lecaroz was not in the municipal payroll for the first
quincena of 1986 which meant that his term had finally ended, and that the reinstatement
of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January
1986 and thereafter for the next twelve and a half (12 -1/2) months was for no other
purpose than to enable him to draw salaries from the municipality.[29] There is however
no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the
name of Lenlie Lecaroz to be dropped from the payroll for the first quincena of January
1986. On the contrary, it is significant that while Lenlie Lecaroz' name did not appear in
the payroll for the first quincena of January 1986, yet, in the payroll for the next quincena
accused Lenlie Lecaroz was paid for both the first and second quincenas, and not merely
for the second half of the month which would have been the case if he was actually
"dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the
succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate
documentation of Red's appointment to and assumption of office, or the result of a mere
clerical error which was later rectified in the succeeding payroll. This however cannot be
confirmed by the evidence at hand. But since a doubt is now created about the import of
such omission, the principle of equipoise should properly apply. This rule demands that
all reasonable doubt intended to demonstrate error and not a crime should be resolved in
favor of the accused. If the inculpatory facts and circumstances are capable of two or
more explanations, one of which is consistent with the innocence of the accused and the
other with his guilt, then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction.[30]
Petitioners have been convicted for falsification of public documents through an
untruthful narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the
offense to be established, the following elements must concur: (a) the offender makes in a
document statements in a narration of facts; (b) the offender has a legal obligation to
disclose the truth of the facts narrated; (c) the facts narrated by the offender are
absolutely false; and, (d) the perversion of truth in the narration of facts was made with
the wrongful intent of injuring a third person.
The first and third elements of the offense have not been established in this case. In
approving the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed
uniformly-worded certifications thus -
I hereby certify on my official oath that the above payroll is correct, and that the services
above stated have been duly rendered. Payment for such services is also hereby approved
from the appropriations indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not
a narration of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was
legally holding over as member of the Sanggunian and thus entitled to the emoluments
attached to the position. This is an opinion undoubtedly involving a legal matter, and any
"misrepresentation" of this kind cannot constitute the crime of false pretenses.[31] In
People v. Yanza[32] we ruled -
Now then, considering that when defendant certified she was eligible for the position, she
practically wrote a conclusion of law which turned out to be inexact or erroneous - not
entirely groundless - we are all of the opinion that she may not be declared guilty of
falsification, specially because the law which she has allegedly violated (Art. 171,
Revised Penal Code, in connection with other provisions), punishes the making of
untruthful statements in a narration of facts - emphasis on facts x x x x Unfortunately, she
made a mistake of judgment; but she could not be held thereby to have intentionally
made a false statement of fact in violation of Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even
adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a
holdover member of the Sanggunian was not entirely bereft of basis, anchored as it was
on the universally accepted doctrine of holdover. La mera inexactitude no es bastante
para integrar este delito.[33] If the statements are not altogether false, there being some
colorable truth in them, the crime of falsification is deemed not to have been committed.
Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was
not proved in this case. The court a quo used as indication of conspiracy the fact that the
accused Mayor certified the payrolls authorizing payment of compensation to his son
Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries. These
are not legally acceptable indicia, for they are the very same acts alleged in the
Informations as constituting the crime of estafa through falsification. They cannot
qualify as proof of complicity or unity of criminal intent. Conspiracy must be established
separately from the crime itself and must meet the same degree of proof, i.e., proof
beyond reasonable doubt. While conspiracy need not be established by direct evidence,
for it may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together however, the evidence must reasonably be
strong enough to show community of criminal design.[34]
Perhaps subliminally aware of the paucity of evidence to support it, and if only to
buttress its finding of conspiracy, the Sandiganbayan stressed that the two accused are
father and son. Granting that this is not even ad hominem, we are unaware of any
presumption in law that a conspiracy exists simply because the conspirators are father
and son or related by blood.
WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October
1994 and Resolution of 1 October 1997 of the Sandiganbayan are REVERSED and SET
ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are
ACQUITTED of all the thirteen (13) counts of estafa through falsification of public
documents (Crim. Cases Nos. 13904-13916). The bail bonds posted for their provisional
liberty are cancelled and released. Costs de oficio.
SO ORDERED.
G.R. No. 169604 March 6, 2007
NELSON P. COLLANTES, Petitioner, vs. HON. COURT OF APPEALS,
CIVIL SERVICE COMMISSION and DEPARTMENT OF NATIONAL DEFENSE,
Respondents.
D E C I S I O N
CHICO-NAZARIO, J .:
A decision that has acquired finality becomes immutable and unalterable. A final
judgment may no longer be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and law; and whether it be made
by the court that rendered it or by the highest court in the land.
1

What would happen, however, if two separate decisions, irreconcilably conflicting
with each other, both attained finality? Quite clearly, to hold that both decisions
are immutable and unalterable would cause not only confusion and uncertainty,
but utter bewilderment upon the persons tasked to execute these judgments.
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
seeking to set aside the Decision
2
dated 10 March 2005 and the Resolution
3

dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No. 78092.
The undisputed facts of this case are summarized by the Court of Appeals:
Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career
Executive Service Eligibility on 29 February 1996. Then President Fidel V.
Ramos accorded him the rank of Career Executive Service Officer (CESO) II on
10 February 1997. More than a year later, he was appointed as Undersecretary
for Peace and Order of the Department of Interior and Local Government (DILG).
With the change of administration, Collantes allegedly received word from
persons close to then President Ejercito Estrada to give up his position so that
the President could unreservedly appoint his key officials. As such, Collantes
relinquished his post at the DILG.
Thereafter, on 1 July 1998, President Estrada appointed Collantes to the
controversial post Undersecretary for Civilian Relations of the Department of
National Defense (DND). As it happened, his stint in the DND was short lived.
Collantes was supposedly ordered by then Secretary Orlando Mercado to
renounce his post in favor of another presidential appointee, General Orlando
Soriano. In deference to the Presidents prerogative, he resigned from office
believing that he will soon be given a new assignment.
Unfortunately, Collantes was not given any other post in the government, as in
fact, he received a letter from President Estrada terminating his services effective
8 February 1999. Consequently, on 24 March 1999, Collantes requested the
assistance of the Career Executive Service Board relative to the termination of
his services as Undersecretary for Civilian Relations of the DND invoking his
right to security of tenure as a CESO.
The termination of Collantes services, notwithstanding, President Estrada
accorded Collantes the highest rank in the CES ranking structure, CESO Rank I,
on 17 July 1999. But then, despite this promotion in rank, Collantes did not
receive new appointment, and worse, the President appointed Mr. Edgardo
Batenga to the much coveted position of Undersecretary for Civilian Relations of
the DND.
Taking definite action on the matter, Collantes instituted a Petition for Quo
Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R.
SP NO. 62874. Collantes maintained that he was constructively dismissed from
work, without any cause and due process of law, and thus, his position in the
DND was never vacated at all. Accordingly, he prayed that the appointment of
Mr. Edgardo Batenga be nullified, and that he be reinstated to his former position
with full back salaries. Notably, Collantes also sought for appointment to a
position of equivalent rank commensurate to his CESO Rank I if reinstatement to
his former position is no longer legally feasible.
Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-
request issuing Resolution No. 011364, and thereby holding that Collantes relief
as Undersecretary of DND amounted to illegal dismissal as he was not given
another post concomitant to his eligibility.
Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874
dismissing the Petition for Quo Warranto and Mandamus filed by Collantes.
Significantly, We pronounced:
"By such actuations of the petitioner, the Court finds that he has (sic) effectively
resigned from his position as Undersecretary of the DND, and the public
respondents are under no compulsion to reinstate him to his old position.
x x x x
"In this case, petitioner has undoubtedly shown his intention to relinquish his
public office, and has in fact surrendered such post to the Chief Executive, who,
on the other hand, has shown his acceptance of the same by appointing a new
person to the position relinquished by the petitioner.
x x x x
Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the
public office in question has not been usurped, intruded into or unlawfully held by
the present occupant. Nor does the incumbent undersecretary appear to have
done or suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997
Rules of Civil Procedure). Furthermore, it appears that the action for quo
warranto, assuming it is available, has already lapsed by prescription, pursuant
to Section 11 of the pertinent Rule ...
x x x x
WHEREFORE, premises considered, the instant petition for Quo Warranto and
Mandamus is hereby DISMISSED."
The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless,
the case was considered closed and terminated when Collantes manifested his
desire not to pursue his appeal and withdraw his Petition for Review on
Certiorari. Thereafter, Collantes moved for the execution of CSC Resolution No.
011364, which was accordingly granted through CSC Resolution No. 020084
dated 15 January 2002 "directing the DND to give Collantes a position where his
eligibility is appropriate and to pay his backwages and other benefits from the
time of his termination up to his actual reinstatement."
In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through
Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were
entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874,
which has attained finality pursuant to the Supreme Courts Resolution in G.R.
No. 149883.
Consequently, in complete turnabout from its previous stance, the CSC issued
Resolution No. 021482 dated 12 November 2002 declaring that had it been
properly informed that a Petition for Quo Warranto and Mandamus was then
pending before Us, it would have refrained from ruling on Collantes quandary,
thus:
"WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal
Affairs Leticia A. Gloria of the department of National Defense (DND) is hereby
GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-
0084 dated January 15, 2002 are reversed. Accordingly, pursuant to the decision
of the Court of Appeals, Nelson P. Collantes is deemed effectively resigned from
his position as Undersecretary of the DND."
Forthwith, Collantes moved for a reconsideration of this Resolution, but was
denied by the CSC in the second assailed Resolution No. 030542 dated 5 May
2003.
4

On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari
with the Court of Appeals praying for the reversal of the Civil Service
Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of
Appeals can decide this case, however, petitioner was appointed as General
Manager of the Philippine Retirement Authority on 5 August 2004. The Court of
Appeals dismissed the Petition for Certiorari in the assailed 10 March 2005
Decision:
WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse
of discretion may be imputed against the Civil Service Commission for rendering
Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003,
respectively. No pronouncement as to costs.
5

The Motion for Reconsideration filed by petitioner was denied in the assailed 31
August 2005 Resolution.
6

Petitioner filed the present Petition for Review, seeking the reversal of the
foregoing Decision and Resolution of the Court of Appeals. In view of his 5
August 2004 appointment, however, petitioners prayer is now limited to seeking
the payment of backwages and other benefits that may have been due him from
the time of his alleged dismissal on 8 February 1999 to his appointment on 5
August 2004. Petitioner submits the following issues for our consideration:
A.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R. NO.
62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL
AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE COMMISSION
DATED AUGUST 14, 2001.
B.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE
COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS VERY
OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY AND
IN FLAGRANT VIOLATION OF PETITIONERS RIGHT TO DUE PROCESS.
C.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE CIVIL
SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE
REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE
DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT
TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED
THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY
OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.
7

Both petitioner and herein respondents CSC and Department of National
Defense (DND) invoke the doctrine of immutability of final judgments.
Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that
petitioner "was illegally removed as Undersecretary of the Department of
National Defense and therefore x x x should be given a position where his
eligibility is appropriate or sufficient," has attained finality. Petitioner adds that,
not only has there been no appeal or motion for reconsideration filed within the
allowable periods, the CSC even granted the Motion for Execution filed by
petitioner in its Order dated 15 January 2002. Petitioner thereby invokes our
ruling that, before a writ of execution may issue, there must necessarily be a final
judgment or order that disposes of the action or proceeding.
8
Petitioner also
faults the CSC for ruling on a mere letter filed by Atty. Leticia Gloria of the DND,
which petitioner claims is fatally defective for failure to comply with the procedural
due process clause of the Constitution, the Rules of Court, and the Uniform
Rules in Administrative Cases in the Civil Service which require notice to adverse
parties.
9

Respondents, on the other hand, invoke the same doctrine of immutability of final
judgments, this time with respect to the 30 August 2001 Decision of the Court of
Appeals dismissing the Petition for Quo Warranto and Mandamus filed by
petitioner. This Court of Appeals Decision became final and executory when
petitioner withdrew the Motion for Extension to File a Petition for Review on
Certiorari he filed with this Court.
10

Forum Shopping, Res Judicata, and Litis Pendentia
Our rules on forum shopping are meant to prevent such eventualities as
conflicting final decisions as in the case at bar. We have ruled that what is
important in determining whether forum shopping exists or not is the vexation
caused the courts and parties-litigants by a party who asks different courts and/or
administrative agencies to rule on the same or related causes and/or grant the
same or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same issues.
11

More particularly, the elements of forum shopping are: (a) identity of parties or at
least such parties as represent the same interests in both actions; (b) identity of
the rights asserted and the reliefs prayed for, the relief being founded on the
same facts; and (c) the identity of the two preceding particulars, such that any
judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.
12

Forum shopping can be committed in three ways: (1) filing multiple cases based
on the same cause of action and with the same prayer, the previous case not
having been resolved yet (where the ground for dismissal is litis pendentia); (2)
filing multiple cases based on the same cause of action and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is res
judicata); and (3) filing multiple cases based on the same cause of action but with
different prayers (splitting of causes of action, where the ground for dismissal is
also either litis pendentia or res judicata).
13
If the forum shopping is not
considered willful and deliberate, the subsequent cases shall be dismissed
without prejudice on one of the two grounds mentioned above. However, if the
forum shopping is willful and deliberate, both (or all, if there are more than two)
actions shall be dismissed with prejudice.
14

Petitioner disputes respondents claim, and the CSCs ruling,
15
that he had
lodged two separate actions. Petitioner explains that he never filed a case before
the CSC. He merely sought the assistance of the Career Executive Service
Board (CESB) in a letter-request dated 24 March 1999. Said letter-request,
petitioner claims, did not ask for any ruling.
Petitioner claims that, considering that two years had already lapsed without any
response from the CESB, he filed on 23 January 2001 his Petition for Quo
Warranto and Mandamus with the Court of Appeals. Petitioner was surprised
when he learned through the 8 February 2001 letter of the CESB that, on 29
November 2000, it referred petitioners request to the CSC for appropriate
action.
16
Petitioner was not required to submit any pleading in support of his
request. Apparently, the CSC treated the letter-request as a complaint or petition
over which it could exercise its adjudicative powers, as it issued its 13 August
2001 Resolution declaring petitioner to have been illegally removed as
Undersecretary of the DND, and should therefore be given a position appropriate
or sufficient for his eligibility.
17
As stated above, the Court of Appeals Decision
dismissing the Petition for Quo Warranto and Mandamus was rendered 17 days
later, on 30 August 2001. Petitioner filed with this Court a motion for an extension
of time within which to file a Petition for Review on Certiorari, but he later
submitted a Manifestation for the withdrawal of this motion as he decided not to
pursue his appeal.
18
Instead, petitioner filed with the CSC on 25 October 2001 a
Motion for the Issuance of a Writ of Execution,
19
which the CSC granted on 15
January 2002.
20

In repeatedly asserting that he did not file two separate actions, petitioner is
arguing, without stating it categorically, that he cannot be held liable for forum
shopping. However, what one cannot do directly cannot be done indirectly.
Petitioner had been aware, through the 8 February 2001 letter of the CESB, that
his request for assistance was referred to the CSC on 29 November 2000 for
appropriate action. From that point on, he knew that two government agencies
the CSC and the Court of Appeals were simultaneously in the process of
reaching their respective decisions on whether petitioner was entitled to
reinstatement or to a position appropriate to his eligibility. Therefore, it cannot be
denied that petitioner knew, from the moment of receipt of the 8 February 2001
letter of the CESB, that he had effectively instituted two separate cases, and
whatever original intention he had for his letter-request is, by then, forgotten.
Petitioner subsequently proceeded to act like a true forum shopper he
abandoned the forum where he could not get a favorable judgment, and moved
to execute the Resolution of the forum where he succeeded.
Petitioners above actuation is, in fact, a violation of his certification against forum
shopping with the Court of Appeals, a ground for dismissal of actions distinct
from forum shopping itself. As petitioner knew from the receipt of the CESB letter
that another claim was pending in a quasi-judicial agency concerning these
issues, he was bound by his certification with the Court of Appeals to report such
fact within five days from his knowledge thereof. This circumstance of being
surprised by the discovery of another pending claim with another court or quasi-
judicial agency is the very situation contemplated by letter (c) in the first
paragraph of Section 5, Rule 7 of the Rules of Court:
Section 5. Certification against forum shopping. The plaintiff or principal party
shall certify under oath in the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of
the present status thereof; and (c) if he should thereafter learn that the same or
similar action or claim has been filed or is pending, he shall report that fact within
five (5) days therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed. (Emphases supplied.)
Petitioner, however, further asserts that the issues brought in the Petition for
Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition for Quo
Warranto and Mandamus filed on 29 January 2001 are distinct, and that the
Decision of the Court of Appeals in the latter cannot constitute res judicata with
respect to the former.
21
Petitioner claims that the issues, remedies and reliefs in
the two cases are different, citing as basis the textbook definitions of quo
warranto, certiorari and mandamus. Petitioner further claims that:
There is a clear distinction between the right of petitioner to the position of
Undersecretary for Civilian Relations and his right to be re-appointed to another
position of equivalent rank, in view of his CESO I status. The former issue may
have been resolved by the Court of Appeals when it ruled that petitioner
Collantes had "effectively resigned from his position as Undersecretary of the
DND, and the public respondents are under no compulsion to reinstate him to his
old position." The latter issue, or the right of petitioner Collantes to be given a
new assignment fitting to his CESO I rank, arises from his right to security of
tenure as a Career Executive Service Eligible, and not from his appointment to
the DND.
22

This allegedly clear distinction springs from petitioners claim that he resigned
from his position, but not from his rank as a Career Executive Service Officer
(CESO). Petitioner claims that, as a CESO, there is a "great difference between
(1) resigning from ones position and (2) resigning or relinquishing ones rank, as
position is different from ones rank. POSITION refers to the particular or specific
office from which one may be appointed. RANK, on the other hand, refers not to
a particular position but to the class to which one belongs in the hierarchy of
authority in an organization or bureaucracy."
23
Petitioner cites Cuevas v. Bacal
24
:
[S]ecurity 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 the first and second-level employees in the civil service --- but to the rank to
which they are appointed by the President.
x x x x
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. x x x.
and General v. Roco
25
:
In addition, it must be stressed that the security of tenure of employees in the
career executive service (except first and second-level employees in the civil
service), pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO suffers no diminution
of salary even if assigned to a CES position with lower salary grade, as he is
compensated according to his CES rank and not on the basis of the position or
office he occupies.
While there is indeed a distinction between position and rank, such that a CESO
may be transferred or reassigned from one position to another without losing his
rank, there can be no distinction between resigning from a position and resigning
from a rank. The rank of a CESO is deactivated upon separation from the
government service, which includes the resignation of a CESO from his position.
The CESB has clarified this concept of being in the inactive status in its
Resolution No. 554, series of 2002:
Rule II
x x x x
7. CESO in Inactive Status - is a CESO who no longer occupies a position in the
CES as a result of any of the modes of separation from the government service,
provided that such separation is not due to dismissal from the service for cause.
x x x x
Rule IV
Section 1. Modes of Deactivating a CES Rank. There are three (3) modes by
which the CES Rank of a CESO may be deactivated from the CES:
1. Acceptance of a position by virtue of an appointment outside the coverage of
the CES;
2. Dropping from the rolls of government officials and employees; and
3. Other modes of separation from the CES, provided that separation from the
CES resulting from dismissal from the service for cause and after due process
shall result in the loss of CES rank and shall not be considered as a mode of
deactivation.
x x x x
Sec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has
been deactivated by the Board loses all the rights and privileges accorded to
him/her by law on account of his/her CES rank.
Likewise, it would be absurd for us to rule that a civil servant who resigns from
his position can compel the President to appoint him to another position. Such a
ruling would effectively derogate the discretion of the appointing authority,
26
as it
will give the CESO the option to choose which position he or she wants, by the
simple expediency of resigning from the position he or she does not want.
In sum, there is an identity of issues in the two cases which resulted in the two
conflicting final and executory decisions. But while, as stated above, the second
petition can be dismissed on the ground of either res judicata or non-compliance
with the undertakings in petitioners certification against forum shopping, these
grounds can only be invoked when the case is still pending. As petitioner points
out, the Resolution of the CSC had already become final and executory.
The 30 August 2001 Decision of the Court of Appeals, however, has also
attained finality. Hence, we go back to the main issue in this petition: which of the
two final and executory decisions should be given effect, the 30 August 2001
Court of Appeals Decision dismissing the petitioners Petition for Quo Warranto,
or the 13 August 2001 CSC Resolution declaring petitioner Collantes to be
illegally removed as Undersecretary of the DND?
Two Conflicting Final and Executory Decisions
Jurisprudence in the United States offers different solutions to this problem:
Where there have been two former actions in which the claim or demand, fact or
matter sought to be religated has been decided contrarily, the rule that, where
there is an estoppel against an estoppel, it "setteth the matter at large" has been
applied by some authorities, and in such case both parties may assert their
claims anew. Other authorities have held that, of two conflicting judgments on the
same rights of the same parties, the one which is later in time will prevail,
although it has also been held that the judgment prior in time will prevail. It has
been held that a decision of a court of last resort is binding on the parties,
although afterward, in another cause, a different principle was declared.
27

There are thus three solutions which we can adopt in resolving the case at bar:
the first is for the parties to assert their claims anew, the second is to determine
which judgment came first, and the third is to determine which of the judgments
had been rendered by a court of last resort.
As there are conflicting jurisprudence on the second solution, it is appropriate for
this Court to adopt either the first or the third solution. The first solution involves
disregarding the finality of the two previous judgments and allowing the parties to
argue on the basis of the merits of the case anew. The third solution merely
involves the determination of which judgment has been rendered by this Court,
the court of last resort in this jurisdiction.
Adopting the third solution will result in the denial of this Petition for Certiorari.
Whereas the finality of the 13 August 2001 CSC Resolution came about by the
failure to file a motion for reconsideration or an appeal within the proper
reglementary periods, the finality of the 30 August 2001 Court of Appeals
Decision was by virtue of the 12 November 2001 Resolution
28
of this Court which
declared the case closed and terminated upon the manifestation of petitioner that
he decided not to pursue his appeal and was thus withdrawing the motion for
extension of time to file a petition for review on certiorari.
The better solution, however, is to let the parties argue the merits of the case
anew, and decide the case on the basis thereof. We can do this either by
remanding the case to a lower court, or by resolving the issues in this disposition.
The latter recourse is more appropriate, for three reasons: (1) all the facts,
arguments, and pleadings in support of the parties contentions are now before
us, with the parties advancing the very same contentions as those in this Petition;
(2) a remand to the Court of Appeals would entail asking the latter to resolve the
very same issues it had passed upon twice; and (3) a remand to the Court of
Appeals would only entail another unnecessary delay in the termination of the
case when the case is now ripe for adjudication before us.
The merits of the case are the focus of petitioners third assignment of error in
the present petition. Petitioner claims that the Court of Appeals committed a
grave and reversible error when it upheld the resolution of the CSC which
allegedly effectively held "that petitioner may be removed from his position as
Undersecretary of the Department of National Defense without the concomitant
transfer to a position equivalent in rank or be removed then, be floated
perpetually, which is tantamount to a constructive dismissal, in violation of his
right to security of tenure as a career executive service eligible."
29

Petitioners arguments presuppose that he had been removed from his position
as Undersecretary of the DND. He, however, did not present any evidence to that
effect, whether in this Petition or in his earlier Petition for Quo Warranto and
Mandamus with the Court of Appeals. If he is implying that he was removed from
office by virtue of his account that he was approached by persons close to
President Joseph Estrada who asked him to relinquish his post, which he did,
then this Petition must fail, for, by his own deliberate deed, he resigned from his
position.
There are no special legal effects when a resignation is one of a courtesy
resignation. The mere fact that the President, by himself or through another,
requested for someones resignation does not give the President the obligation to
appoint such person to another position. A courtesy resignation is just as
effectual as any other resignation. There can be no implied promises of another
position just because the resignation was made out of courtesy. Any express
promise of another position, on the other hand, would be void, because there can
be no derogation of the discretion of the appointing power,
30
and because its
object is outside the commerce of man.
31
As held by the Court of Appeals in its
30 August 2001 Decision:
In the first place, petitioner has not established by any quantum of certainty the
veracity of his claim that he was promised an equivalent position in the
government. Assuming, however, that such promise was true, petitioner, as a
ranking member of the bureaucracy, ought to have known that such promise
offers no assurance in law that the same would be complied with. The time-
honored rule is that public office is a public trust, and as such, the same is
governed by law, and cannot be made the subject of personal promises or
negotiations by private persons.
32

WHEREFORE, the present Petition for Review on Certiorari is DENIED. No
costs.
SO ORDERED.
[G.R. No. 129616. April 17, 2002]
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and
RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
This petition for review on certiorari[1] seeks to set aside the Decision dated June
20, 1997 of the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the
Resolution No. 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 Manager II of the Resources Management Division,
Ports Management Office, Philippine Ports Authority (PPA), Iloilo City.
The facts are:
Julieta Monserate, respondent, started her government service in 1977 as
Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she
was promoted to the position of Cashier II and then as Finance Officer (SG-16) in
1980.[3]
In the early part of 1988, when the PPA underwent a reorganization, respondent
applied for the permanent position of Manager II (SG-19) of the Resource Management
Division, same office. The Comparative Data Sheet[4] accomplished by the PPA
Reorganization Task Force shows the ranking of the six (6) aspirants to the said position,
thus:
COMPARATIVE DATA SHEET
OFFICE: PMO ILOILO
DIVISION: RES.
MANAGEMENT DIVISION
POSITION: DIVISION
MANAGER
REQUIRED CS ELIG.: CS PROF / RA 1080
CANDIDATES ELIGIBILITY xxx
TOTAL
1. MONSERATE, JULIETA CS Prof. xxx 79.5
2. ANINO, RAMON 1st grade
xxx 70
3. TEODOSIO, APRIL PD 907 (CPA)
xxx 67
4. MORTOLA, DARIO CS Prof.
xxx 67
5. ESPINOSA, AMALIK Bar
xxx 63.5
6. PERFECTO, BASCOS RA 1080 xxx 59.5
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA,
appointed[5] respondent to the position of Manager II (Resource Management
Division). On even date, respondent assumed office and discharged the functions
thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the
Civil Service Field Office-PPA) approved her appointment.
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to
respondent per 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 Resolution[6] dated August 11, 1988, sustained the protest and rendered
ineffective 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 explained or discussed in the Resolution, the
dispositive portion of which reads:
WHEREFORE, premises considered, this Board upholds the appointment of Ramon A.
Anino as Resources Management Division Manager of the Port Management Office of
Iloilo.
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 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, Resource Management Division. In effect, the Special Order
implemented the August 11, 1988 Resolution of the PPA Appeals Board.
Aggrieved, respondent filed with the PPA General Manager an appeal/request for
clarification dated November 2, 1988.[10] She questioned her replacement under PPA
Special 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 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 Manager (in Iloilo City), who was then an official
member of the Board, was not included in the said proceedings.
On November 8, 1988, pending resolution of her appeal/request for clarification,
respondent received a copy of PPA Special Order No. 492-88[12] dated October 21,
1988, also issued by General Manager Dayan. This PPA Order officially reassigned her
to the position of Administrative Officer (SG-15) which was petitioner Anino's former
position and was lower than her previous position as Finance Officer (SG 16) before she
was appointed as Division Manager.
Apparently at a loss with the turn of events, coupled by the inaction of PPA General
Manager Dayan on her earlier appeal/request for clarification, respondent filed on
November 25, 1988 a precautionary appeal[13] with the CSC. She manifested that as
of said date (November 25), she has not yet been furnished a certified copy of the PPA
Appeals Board Resolution.
On January 2, 1989, respondent received a copy of her new appointment as
Administrative Officer dated October 1, 1988.[14] It was also during this time when she
learned that PPA General Manager Dayan had just issued petitioners appointment dated
October 21, 1988 as Manager II in the Resource Management Division effective
February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal formally protesting
against petitioner Aninos appointment and at the same time questioning the propriety of
the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained
pending with the CSC for more than six (6) years despite respondent's requests for early
resolution. In the meantime, she assumed the position of Administrative Officer.
Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995,
dismissed respondents appeal, thus:
It is well-established rule that an appointment, although approved by this Commission,
does 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.
SO ORDERED.
[G.R. No. 118883. January 16, 1998]
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented
by VICE MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO,
petitioner, vs. COURT OF APPEALS and AUGUSTO T. ANTONIO,
respondents.
D E C I S I O N
PANGANIBAN, J .:
Although a resignation is not complete without an acceptance thereof by the
proper authority, an office may still be deemed relinquished through voluntary
abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court
seeking a reversal of the Decision[1] of the Court of Appeals[2] promulgated on
January 31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated
February 18, 1994 of the Regional Trial Court[3] of Virac, Catanduanes, Branch
42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that
paragraphs 1, 2 and 4 thereof are deleted. Paragraph 3 is AFFIRMED. No
pronouncement as to costs.[4]
Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of
Sapang Palay, San Andres, Catanduanes in March 1989. He was later elected
president of the Association of Barangay Councils (ABC)[5] for the Municipality of
San Andres, Catanduanes. In that capacity and pursuant to the Local
Government Code of 1983, he was appointed by the President as member of the
Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and
Local Government (DILG) declared the election for the president of the
Federation of the Association of Barangay Councils (FABC) of the same
province, in which private respondent was a voting member, void for want of a
quorum. Hence, a reorganization of the provincial council became necessary.
Conformably, the DILG secretary designated private respondent as a temporary
member of the Sangguniang Panlalawigan of the Province of Catanduanes,
effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the
Sangguniang Bayan. He tendered his resignation[6] dated June 14, 1990 to
Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished to
the provincial governor, the DILG and the municipal treasurer. Pursuant to
Section 50 of the 1983 Local Government Code[7] (B.P. Blg. 337), Nenito F.
Aquino, then vice-president of the ABC, was subsequently appointed by the
provincial governor as member of the Sangguniang Bayan[8] in place of private
respondent. Aquino assumed office on July 18, 1990 after taking his oath.[9]
Subsequently, the ruling of DILG Secretary Santos annulling the election of
the FABC president was reversed by the Supreme Court in Taule vs. Santos.[10]
In the same case, the appointment of Private Respondent Antonio as sectoral
representative to the Sangguniang Panlalawigan was declared void, because he
did not possess the basic qualification that he should be president of the
federation of barangay councils.[11] This ruling of the Court became final and
executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the
Sangguniang Bayan of San Andres advising them of his re-assumption of his
original position, duties and responsibilities as sectoral representative[12]
therein. In response thereto, the Sanggunian issued Resolution No. 6, Series of
1992, declaring that Antonio had no legal basis to resume office as a member of
the Sangguniang Bayan.[13]
On August 13, 1992, private respondent sought from the DILG a definite
ruling relative to his right to resume his office as member of the Sangguniang
Bayan.[14] Director Jacob F. Montesa, department legal counsel of the DILG,
clarified Antonios status in this wise:
Having been elected President of the ABC in accordance with the
Departments Memorandum Circular No. 89-09,[15] you became an ex-officio
member in the sanggunian. Such position has not been vacated inasmuch as
you did not resign nor abandon said office when you were designated as
temporary representative of the Federation to the Sangguniang Panlalawigan of
Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State
College Board of Trustees (192 SCRA 327), declared that: designation implies
temporariness. Thus, to designate a public officer to another position may
mean to vest him with additional duties while he performs the functions of his
permanent office. In some cases, a public officer may be designated to a
position in an acting capacity as when an undersecretary is designated to
discharge the functions of the Secretary pending the appointment of a permanent
Secretary.
Furthermore, incumbent ABC presidents are mandated by the Rules and
Regulations Implementing the 1991 Local Government Code to continue to act
as president of the association and to serve as ex-officio members of the
sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep.
Act No. 7160, provides that:
The incumbent presidents of the municipal, city and provincial chapters of the
liga shall continue to serve as ex-officio members of the sanggunian concerned
until the expiration of their term of office, unless sooner removed for cause.
(f) x x x Pending election of the presidents of the municipal, city, provincial and
metropolitan chapters of the liga, the incumbent presidents of the association of
barangay councils in the municipality, city, province and Metropolitan Manila,
shall continue to act as president of the corresponding liga chapters under this
Rule.
In view of the foregoing, considering that the annuled designation is only an
additional duty to your primary function, which is the ABC President, we find no
legal obstacle if you re-assume your representation in the sanggunian bayan as
ex-officio member.[16]
Despite this clarification, the local legislative body issued another
resolution[17] reiterating its previous stand.
In response to private respondents request,[18] Director Montesa opined
that Antonio did not relinquish or abandon his office; and that since he was the
duly elected ABC president, he could re-assume his position in the
Sanggunian.[19] A copy of said reply was sent to the members of the local
legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of
private respondent to re-assume office as sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and
mandamus with preliminary mandatory injunction and/or restraining order before
the RTC. On February 18, 1994, the trial court rendered its decision holding that
Augusto T. Antonios resignation from the Sangguniang Bayan was ineffective
and inoperative, since there was no acceptance thereof by the proper
authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of
the petitioner and against the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of
P10,000.00 as attorneys fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral
representative of the Sangguniang Bayan of San Andres,
Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected
salaries similar to those received by the other members of the
Sangguniang Bayan of San Andres, Catanduanes as certified
to by the Municipal Budget Officer and Municipal Treasurer of
the same municipality from April 8, 1992 up to the date of this
judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void
and to have no effect.[20]
Petitioners appealed this judgment to the Court of Appeals.
Appellate Courts Ruling
Respondent Court of Appeals affirmed the trial courts ruling but deleted the
first, second and fourth paragraphs of its dispositive portion. It held that private
respondents resignation was not accepted by the proper authority, who is the
President of the Philippines. While the old Local Government Code is silent as to
who should accept and act on the resignation of any member of the Sanggunian,
the law vests in the President the power to appoint members of the local
legislative unit. Thus, resignations must be addressed to and accepted by him.
It added that, though the secretary of the DILG is the alter ego of the President
and notice to him may be considered notice to the President, the records are
bereft of any evidence showing that the DILG secretary received and accepted
the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation,
private respondent was still the president of the ABC and, as such, he was
qualified to sit in the Sangguniang Bayan in an ex officio capacity by virtue of
Section 494[21] of R.A. 7160[22] and Memorandum Circular No. 92-38.[23] In
view, however, of the May 1994 elections in which a new set of barangay officials
was elected, Antonios reassumption of office as barangay representative to the
Sangguniang Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered
to have abandoned his office. His designation as member of the Sangguniang
Panlalawigan was merely temporary and not incompatible with his position as
president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys fees for being
without basis, and held that Resolution Nos. 6 and 28 of the Sangguniang Bayan
of San Andres involved a valid exercise of the powers of said local body. It thus
modified the trial courts judgment by affirming paragraph 3 and deleting the
other items. Unsatisfied, petitioners brought the present recourse.[24]
Issues
The petitioner, in its memorandum,[25] submits before this Court the
following issues:
I. Whether or not respondents resignation as ex-officio member of Petitioner
Sangguniang Bayan ng San Andres, Catanduanes is deemed complete so as to
terminate his official relation thereto;
II. Whether or not respondent had totally abandoned his ex-officio
membership in Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those
received by other members of Petitioner Sangguniang Bayan from April 8, 1992
up to date of judgment in this case by the Regional Trial Court of Virac,
Catanduanes.[26]
In sum, was there a complete and effective resignation? If not, was there
an abandonment of office?
This Courts Ruling
The petition is meritorious. Although the terms of office of barangay
captains, including private respondent, elected in March 1989 have expired, the
Court deemed it necessary to resolve this case, as the Court of Appeals had
ordered the payment of the uncollected salaries allegedly due prior to the
expiration of Respondent Antonios term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid
and effective despite the absence of an express acceptance by the President of
the Philippines. The letter of resignation was submitted to the secretary of the
DILG, an alter ego of the President, the appointing authority. The acceptance of
respondents resignation may be inferred from the fact that the DILG secretary
himself appointed him a member of the Sangguniang Panlalawigan of
Catanduanes.[27]
In Ortiz vs. COMELEC,[28] we defined resignation as the act of giving up
or the act of an officer by which he declines his office and renounces the further
right to use it. It is an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. To constitute a complete and
operative resignation from public office, there must be: (a) an intention to
relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance
by the proper authority.[29] The last one is required by reason of Article 238 of
the Revised Penal Code.[30]
The records are bereft of any evidence that private respondents resignation
was accepted by the proper authority. From the time that he was elected as
punong barangay up to the time he resigned as a member of Sangguniang
Bayan, the governing law was B.P. 337 or the Local Government Code of 1983.
While said law was silent as to who specifically should accept the resignation of
an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its
implementing rules states that the [r]esignation of sanggunian members shall be
acted upon by the sanggunian concerned, and a copy of the action taken shall be
furnished the official responsible for appointing a replacement and the Ministry of
Local Government. The position shall be deemed vacated only upon acceptance
of the resignation.
It is not disputed that private respondents resignation letter was addressed
only to the municipal mayor of San Andres, Catanduanes. It is indicated thereon
that copies were furnished the provincial governor, the municipal treasurer and
the DILG. Neither the mayor nor the officers who had been furnished copies of
said letter expressly acted on it. On hindsight, and assuming arguendo that the
aforecited Sec. 6 of Rule XIX is valid and applicable, the mayor should have
referred or endorsed the latter to the Sangguniang Bayan for proper action. In
any event, there is no evidence that the resignation was accepted by any
government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative
body of the municipality and shall be composed of the municipal mayor, who
shall be the presiding officer, the vice-mayor, who shall be the presiding officer
pro tempore, eight members elected at large, and the members appointed by the
President consisting of the president of the katipunang bayan and the president
of the kabataang barangay municipal federation. x x x. (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory
provisions as to whom they should be submitted, should be tendered to the
appointing person or body.[31] Private respondent, therefore, should have
submitted his letter of resignation to the President or to his alter ego, the DILG
secretary. Although he supposedly furnished the latter a copy of his letter, there
is no showing that it was duly received, much less, that it was acted upon. The
third requisite being absent, there was therefore no valid and complete
resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid
absent any acceptance thereof by the proper authority, we nonetheless hold that
Private Respondent Antonio has effectively relinquished his membership in the
Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment
of an office by the holder, with the intention of terminating his possession and
control thereof.[32] Indeed, abandonment of office is a species of resignation;
while resignation in general is a formal relinquishment, abandonment is a
voluntary relinquishment through nonuser.[33] Nonuser refers to a neglect to use
a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an
easement or an office (Blacks Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and
freedom of choice.[34] Its concomitant effect is that the former holder of an office
can no longer legally repossess it even by forcible reoccupancy.[35]
Clear intention to abandon should be manifested by the officer concerned.
Such intention may be express or inferred from his own conduct.[36] Thus, the
failure to perform the duties pertaining to the office must be with the officers
actual or imputed intention to abandon and relinquish the office.[37]
Abandonment of an office is not wholly a matter of intention; it results from a
complete abandonment of duties of such a continuance that the law will infer a
relinquishment.[38] Therefore, there are two essential elements of abandonment:
first, an intention to abandon and, second, an overt or external act by which the
intention is carried into effect. [39]
Petitioner argues that the following clearly demonstrate private respondents
abandonment of his post in the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang
Panlalawigan of Catanduanes was worded temporary, but his acts more than
clearly established his intention to totally abandon his office, indicating an
absolute relinquishment thereof. It bears to emphasize that respondent actually
tendered his resignation and subsequently accepted an ex-officio membership in
the Sangguniang Panlalawigan of Catanduanes. He performed his duties and
functions of said office for almost two (2) years, and was completely aware of the
appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then
Vice-President of the Association of Barangay Councils (ABC) of San Andres,
Catanduanes, as ex-officio member of petitioner Sangguniang Bayan
representing the ABC.
x x x x x x x x x
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed
respondents former position for twenty (20) months, without him questioning the
term of office of the former if indeed respondents designation as ex-officio
member of the Sangguniang Panlalawigan was only temporary. Likewise, for
almost eight (8) months after knowledge of the decision in Taule vs. Santos, et.
al., Ibid., nullifying his designation as representative to the Sangguniang
Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably
act for the purpose of reassuming his former position. Evidently, respondent had
clearly abandoned his former position by voluntary relinquishment of his office
through non-user.[40] [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the
intention of private respondent to abandon his position: (1) his failure to perform
his function as member of the Sangguniang Bayan, (2) his failure to collect the
corresponding remuneration for the position, (3) his failure to object to the
appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his
prolonged failure to initiate any act to reassume his post in the Sangguniang
Bayan after the Supreme Court had nullified his designation to the Sangguniang
Panlalawigan.
On the other hand, the following overt acts demonstrate that he had
effected his intention: (1) his letter of resignation from the Sangguniang
Bayan;[41] (2) his assumption of office as member of the Sangguniang
Panlalawigan, (3) his faithful discharge of his duties and functions as member of
said Sanggunian, and (4) his receipt of the remuneration for such post.
It must be stressed that when an officer is designated to another post, he
is usually called upon to discharge duties in addition to his regular
responsibilities. Indeed, his additional responsibilities are prescribed by law to
inhere, as it were, to his original position. A Supreme Court justice, for instance,
may be designated member of the House of Representatives Electoral Tribunal.
In some cases, a public officer may be designated to a position in an acting
capacity, as when an undersecretary is tasked to discharge the functions of a
secretary for a temporary period.[42] In all cases, however, the law does not
require the public servant to resign from his original post. Rather, the law allows
him to concurrently discharge the functions of both offices.
Private respondent, however, did not simultaneously discharge the duties
and obligations of both positions. Neither did he, at that time, express an
intention to resume his office as member of the Sangguniang Bayan. His overt
acts, silence, inaction and acquiescence, when Aquino succeeded him to his
original position, show that Antonio had abandoned the contested office. His
immediate and natural reaction upon Aquinos appointment should have been to
object or, failing to do that, to file appropriate legal action or proceeding. But he
did neither. It is significant that he expressed his intention to resume office only
on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992,
and months after this Court had nullified his designation on August 12, 1991.
From his passivity, he is deemed to have recognized the validity of Aquinos
appointment and the latters discharge of his duties as a member of the
Sangguniang Bayan.
In all, private respondents failure to promptly assert his alleged right implies
his loss of interest in the position. His overt acts plainly show that he really
meant his resignation and understood its effects. As pointed out by the eminent
American commentator, Mechem:[43]
Public offices are held upon the implied condition that the officer will diligently
and faithfully execute the duties belonging to them, and while a temporary or
accidental failure to perform them in a single instance or during a short period will
not operate as an abandonment, yet if the officer refuses or neglects to exercise
the functions of the office for so long a period as to reasonably warrant the
presumption that he does not desire or intend to perform the duties of the office
at all, he will be held to have abandoned it, not only when his refusal to perform
was wilful, but also where, while he intended to vacate the office, it was because
he in good faith but mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal
right to be a member of the Sangguniang Bayan by virtue of Section 146 of B.P.
Blg. 337. However, his right thereto is not self-executory, for the law itself
requires another positive act -- an appointment by the President or the secretary
of local government per E.O. 342.[44] What private respondent could have done
in order to be able to reassume his post after Aquinos resignation was to seek a
reappointment from the President or the secretary of local government. By and
large, private respondent cannot claim an absolute right to the office which, by
his own actuations, he is deemed to have relinquished.[45]
We reiterate our ruling in Aparri vs. Court of Appeals: [46]
A public office is the right, authority, and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public x
x x. The right to hold a public office under our political system is therefore not a
natural right. It exists, when it exists at all, only because and by virtue of some
law expressly or impliedly creating and conferring it x x x. There is no such thing
as a vested interest or an estate in an office, or even an absolute right to hold
office. 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 or its salary x x x.
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at
the Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is the
no work, no pay[47] rule. A public officer is entitled to receive compensation for
services actually rendered for as long as he has the right to the office being
claimed.[48] When the act or conduct of a public servant constitutes a
relinquishment of his office, he has no right to receive any salary incident to the
office he had abandoned.[49]
WHEREFORE, the petition is GRANTED and the Assailed Decision is
REVERSED and SET ASIDE. No costs.
SO ORDERED.
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 ORDOEZ, as
Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and
Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as
Press Secretary; JUANITO FERRER, as Secretary of Public Works and
Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of
Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for
petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J .:p
These two (2) petitions were consolidated per resolution dated August 9, 1988
1

and are being resolved jointly as both seek a declaration of the unconstitutionality
of Executive Order No. 284 issued by President Corazon C. Aquino on July 25,
1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a
member of the Cabinet, undersecretary or assistant secretary or other appointive
officials of the Executive Department may, in addition to his primary position, hold
not more than two positions in the government and government corporations and
receive the corresponding compensation therefor; Provided, that this limitation
shall not apply to ad hoc bodies or committees, or to boards, councils or bodies
of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other
appointive official of the Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor
of the subordinate official who is next in rank, but in no case shall any official hold
more than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-
owned or controlled corporations, at least one-third (1/3) of the members of the
boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of
the Cabinet, their undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII of
the 1987 Constitution,
2
which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No. 83815
3
and as Annex "B" in G.R. No. 83896
4
from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary
writs of prohibition and mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition
to their primary positions, dual or multiple positions other than those authorized
by the 1987 Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their questioned
positions, and compelling public respondents to return, reimburse or refund any
and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision of the
1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section
13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23,
1987 Opinion No. 73, series of 1987,
5
declaring that Cabinet members, their
deputies (undersecretaries) and assistant secretaries may hold other public
office, including membership in the boards of government corporations: (a) when
directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section
8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the
primary functions of their respective positions; and that on the basis of this
Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before
Congress convened on July 27, 1987: promulgated Executive Order No. 284.
6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No.
73 and Executive Order No. 284 as they allegedly "lumped together" Section 13,
Article VII and the general provision in another article, Section 7, par. (2), Article
I-XB. This "strained linkage" between the two provisions, each addressed to a
distinct and separate group of public officers one, the President and her
official family, and the other, public servants in general allegedly "abolished
the clearly separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies and subalterns, who
are the leaders of government expected to lead by example."
7
Article IX-B,
Section 7, par. (2)
8
provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73,
series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series
of 1987
9
and DOJ Opinion No. 155, series of 1988,
10
being the first official
construction and interpretation by the Secretary of Justice of Section 13, Article
VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same
subject of appointments or designations of an appointive executive official to
positions other than his primary position, is "reasonably valid and constitutionally
firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-officio
positions or to positions which, although not so designated as ex-officio are
allowed by the primary functions of the public official, but only to the holding of
multiple positions which are not related to or necessarily included in the position
of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by
petitioners on the principal submission that it adds exceptions to Section 13,
Article VII other than those provided in the Constitution. According to petitioners,
by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are
those provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial
and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par.
(2), Article I-XB on the Civil Service Commission applies to officers and
employees of the Civil Service in general and that said exceptions do not apply
and cannot be extended to Section 13, Article VII which applies specifically to the
President, Vice-President, Members of the Cabinet and their deputies or
assistants.
There is no dispute that the prohibition against the President, Vice-President, the
members of the Cabinet and their deputies or assistants from holding dual or
multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article VII,
the exception must be expressly provided in the Constitution, as in the case of
the Vice-President being allowed to become a Member of the Cabinet under the
second paragraph of Section 3, Article VII or the Secretary of Justice being
designated an ex-officio member of the Judicial and Bar Council under Article
VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase
"unless otherwise provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII
of the 1987 Constitution insofar as Cabinet members, their deputies or assistants
are concerned admit of the broad exceptions made for appointive officials in
general under Section 7, par. (2), Article I-XB which, for easy reference is quoted
anew, thus: "Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing
a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to
enact the particular provision and the purpose sought to be accomplished
thereby, in order to construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.
11

The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various government
agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country
were exercised by former President Ferdinand E. Marcos pursuant to his martial
law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by
presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have
remained up to the present time.
This practice of holding multiple offices or positions in the government soon led
to abuses by unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment. In fact, the holding of multiple offices in government
was strongly denounced on the floor of the Batasang Pambansa.
12
This
condemnation came in reaction to the published report of the Commission on
Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and Commissions" which carried
as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in
government service were the data contained therein that Roberto V. Ongpin was
a member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar
E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of
thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel
P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Pea of ten (10) each.
13

The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices and employment.
In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling points of the 1987
Constitution during the campaign for its ratification was the assurance given by
its proponents that the scandalous practice of Cabinet members holding multiple
positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided in
the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the Constitution
was to impose a stricter prohibition on the President and his official family in so
far as holding other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII
with other provisions of the Constitution on the disqualifications of certain public
officials or employees from holding other offices or employment. Under Section
13, Article VI, "(N)o Senator or Member of the House of Representatives may
hold any other office or employment in the Government . . .". Under Section 5(4),
Article XVI, "(N)o member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the Government,
including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents
provides "(U)nless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government."
It is quite notable that in all these provisions on disqualifications to hold other
office or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which
states that "(T)he President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the
latter provision, the disqualification is absolute, not being qualified by the phrase
"in the Government." The prohibition imposed on the President and his official
family is therefore all-embracing and covers both public and private office or
employment.
Going further into Section 13, Article VII, the second sentence provides: "They
shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not
similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to treat the President and
his official family as a class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by Commissioner
Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the anticipated report
on the Executive Department. Commissioner Foz Commented, "We actually
have to be stricter with the President and the members of the Cabinet because
they exercise more powers and, therefore, more cheeks and restraints on them
are called for because there is more possibility of abuse in their case."
14

Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay
down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable
only to the President, the Vice- President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render
nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set
by the framers of the Constitution as to when the high-ranking officials of the
Executive Branch from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents' reading of the provisions in question would render
certain parts of the Constitution inoperative. This observation applies particularly
to the Vice-President who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the Constitution, but who as an
elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible
"for appointment or designation in any capacity to any public office or position
during his tenure." Surely, to say that the phrase "unless otherwise provided in
this Constitution" found in Section 13, Article VII has reference to Section 7, par.
(1) of Article I-XB would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet,

15
and to act as President without relinquishing the Vice-Presidency where the
President shall not nave been chosen or fails to qualify.
16
Such absurd
consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general
rule and the other, i.e., Section 13, Article VII as constituting the exception
thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed
vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of
the Constitution is to be separated from all the others, to be considered alone,
but that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the
instrument.
17
Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution
18
and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
19

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

Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government
offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal
negation.
21
The phrase "unless otherwise provided in this Constitution" must be
given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as
required
22
by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.
23
To characterize these posts otherwise would lead to
absurd consequences, among which are: The President of the Philippines cannot
chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary,
and the Secretaries of National Defense, Justice, Labor and Employment and
Local Government sit in this Council, which would then have no reason to exist
for lack of a chairperson and members. The respective undersecretaries and
assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of
the National Manpower and Youth Council (NMYC) or the Philippine Overseas
Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his
Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board.
24

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

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

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

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

The term "primary" used to describe "functions" refers to the order of importance
and thus means chief or principal function. The term is not restricted to the
singular but may refer to the plural.
33
The additional duties must not only be
closely related to, but must be required by the official's primary functions.
Examples of designations to positions by virtue of one's primary functions are the
Secretaries of Finance and Budget sitting as members of the Monetary Board,
and the Secretary of Transportation and Communications acting as Chairman of
the Maritime Industry Authority
34
and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a cabinet
official, such additional functions would fall under the purview of "any other office"
prohibited by the Constitution. An example would be the Press Undersecretary
sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet
official management functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent with
those already prescribed by their offices or appointments by virtue of their special
knowledge, expertise and skill in their respective executive offices is a practice
long-recognized in many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the different offices
in the Executive Branch in the discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general welfare and delivering
basic services to the people. It is consistent with the power vested on the
President and his alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure that the laws are
faithfully executed.
35
Without these additional duties and functions being
assigned to the President and his official family to sit in the governing bodies or
boards of governmental agencies or instrumentalities in an ex-officio capacity as
provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions
may not transgress the prohibition embodied in Section 13, Article VII of the 1987
Constitution, such additional duties or functions must be required by the primary
functions of the official concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any additional compensation
therefor.
The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be in the form of a per them
or an honorarium or an allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B,
originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position,"
36
express reference to certain high-
ranking appointive public officials like members of the Cabinet were made.
37

Responding to a query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and Industry.
38

While this exchange between Commissioners Monsod and Ople may be used as
authority for saying that additional functions and duties flowing from the primary
functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as
authority for saying that this exception is by virtue of Section 7, par. (2) of Article
I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of
Committee Resolution No. 531 which was the proposed article on General
Provisions.
39
At that time, the article on the Civil Service Commission had been
approved on third reading on July 22, 1986,
40
while the article on the Executive
Department, containing the more specific prohibition in Section 13, had also been
earlier approved on third reading on August 26, 1986.
41
It was only after the draft
Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article
IX-B and reworded "Unless otherwise allowed by law or by the primary functions
of his position. . . ."
What was clearly being discussed then were general principles which would
serve as constitutional guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all appointive
public officials. Had the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then Section 3 of the proposed
general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil
Service Commission.
That this exception would in the final analysis apply also to the President and his
official family is by reason of the legal principles governing additional functions
and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B
At any rate, we have made it clear that only the additional functions and duties
"required," as opposed to "allowed," by the primary functions may be considered
as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings
of the constitutional convention in order to arrive at the reason and purpose of
the resulting Constitution, resort thereto may be had only when other guides fail
42
as said proceedings are powerless to vary the terms of the Constitution when
the meaning is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did
not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe
the constitution from what appears upon its face."
43
The proper interpretation
therefore depends more on how it was understood by the people adopting it than
in the framers's understanding thereof.
44

It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet members
(then called Ministers) as examples during the debate and deliberation on the
general rule laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitution's manifest intent and the
people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284
dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than two (2) positions in the
government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987 Constitution prohibiting
them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will
result from a strict application of the prohibition mandated under Section 13,
Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of "any other office" within
the contemplation of the constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including chairmanships or directorships
in government-owned or controlled corporations and their subsidiaries, suffice it
to say that the feared impractical consequences are more apparent than real.
Being head of an executive department is no mean job. It is more than a full-time
job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment. He should
be precluded from dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he can
handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources Fulgencio
Factoran, Jr., Secretary of Local Government
45
Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and
Secretary of the Budget Guillermo Carague to immediately relinquish their other
offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With respect
to the other named respondents, the petitions have become moot and academic
as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered
de facto officers and as such entitled to emoluments for actual services rendered.
46
It has been held that "in cases where there is no de jure, officer, a de facto
officer, who, in good faith has had possession of the office and has discharged
the duties pertaining thereto, is legally entitled to the emoluments of the office,
and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one
for such services.
47
Any per diem, allowances or other emoluments received by
the respondents by virtue of actual services rendered in the questioned positions
may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are
GRANTED. Executive Order No. 284 is hereby declared null and void and is
accordingly set aside.
SO ORDERED.