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G.R. No. 79974 December 17, 1987 ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs.

. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.: Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit. By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution. The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that: The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. Section 16, Article VII of the 1987 Constitution says: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is readily apparent that under the provisions of the 1987

Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2 Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3

Third, those whom the President may be authorized by law to appoint;


Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5 The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that xxx xxx xxx (3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. (4) The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. xxx xxx xxx (7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ... Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint.

However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices. Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature. Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank. The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized The President: We will call Commissioner Davide later. Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning. xxx xxx xxx On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following: MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last

amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera. MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26. MR. FOZ: That is correct. MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion? MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence. MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office. MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors. xxx xxx xxx MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President? MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments. MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?

MR. FOZ: Yes. MR. MAAMBONG: Thank you. THE PRESIDENT: Is this clear now? What is the reaction of the Committee? xxx xxx xxx MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote. MR. DE CASTRO: Thank you. MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment. Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . . THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved. xxx xxx xxx MR. ROMULO: Madam President. THE PRESIDENT: The Acting Floor Leader is recognized. THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY. MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other

officers mentioned therein do not have to be confirmed by the Commission on Appointments. MR. DAVIDE: Madam President. THE PRESIDENT: Commissioner Davide is recognized. xxx xxx xxx MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION? FR. BERNAS: It is a little vague. MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions. FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments, MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed. FR. BERNAS: Will Commissioner Davide restate his proposed amendment? MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION. FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"? MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

FR. BERNAS: That will clarify things. THE PRESIDENT: Does the Committee accept? MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman. MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas. THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide. xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments. It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis supplied) with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments. Amicus curiae's reliance on the word "also" in said second sentence

is not necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences. As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service. But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16,

Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof. Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments. As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads: The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied]. and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments. The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as to lowerranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the word "alone" in said third sentence. The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986

Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof ...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [Emphasis supplied]. The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; ... In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments, In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to

appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments. Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments. Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows: 601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by

existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head. Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows: Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.) Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto. WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.

SO ORDERED.

G.R. NO. L-69137 August 5, 1986 FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees. Jose Batiquin for petitioner-appellant. Fausto F. Tugade for private respondent-appellee.

CRUZ, J.: Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be briefly narrated as follows: The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and the private respondent's title. The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee

and, on the basis of this finding, order his replacement by the latter? The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violation of the Constitution. 5 While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary. The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not

empowered to determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the nature or kind of the appointment to be extended.
8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service merely as a check to assure compliance with Civil Service Laws. 9 Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then considered part of the appointing process, which was held complete only after such confirmation. 11 Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not the person appointed meets all the required conditions laid down by the law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia the power to: 9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (emphasis supplied) However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on-or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities. Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the

Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate eligibility. 13 There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party may be in power. WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs. SO ORDERED.

October 14, 1949 G.R. No. L-3081 ANTONIO LACSON, petitioner, vs. HONORIO ROMERO, ET AL., respondents. Cruz, Puno and Lacson for petitioner. The respondent Provincial Fiscal in his own behalf. Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor Inocencio Rosal for respondent Judge. , J.: Involved in these quo warranto proceedings filed directly with this Court is the Office of Provincial Fiscal of Negros Oriental, and the right to said position as between the petitioner Antonio Lacson and the respondent Honorio Romero. The facts necessary for the decision in this case may be stated as follows: Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the Commission on Appointment on August 6, 1946. He took his oath of office on August 10, 1946, and thereafter performed the duties of that office. Upon recommendation of the Secretary of Justice, on May 17, 1949, the President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same date, the President nominated for the position of provincial fiscal of Negros Oriental respondent Romero. Both nominations were simultaneously confirmed by the Commission on Appointments on May 19, 1949. Lacson neither accepted the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took his oath of office

(the post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental, he notified Lacson of his intention to take over the office the following day, but Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433 before Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson filed his objection and asked that Romero's appearance be stricken from the record. After Romero had exhibited his credentials as required by the court, Judge Narvasa on the same day denied the petition of Lacson and recognized respondent Romero as the provincial fiscal of Negros Oriental. On June 27, 1949, Romero appeared in Special Proceedings No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said appearance but the court overruled his objection. This will explain why Judges Narvasa and Ocampo were made respondents in these quo warranto proceedings. When petitioner Lacson requested payment of his salary for the period from June 16 to June 23, 1949 as provincial fiscal of Negros Oriental, Angel Paguia, Provincial Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and instead paid respondent Romero the salary for the position of provincial fiscal from June 16, 1949, and continued paying it to him periodically up to the present time. Their action was based on a reply given to their query, by the Secretary of Justice to the effect that Romero, was the provincial fiscal of Negros Oriental. This is the reason why the Auditor and the Treasurer of Negros Oriental were likewise made respondents in these proceedings. The purpose of the present action is to establish the right of the petitioner to the post of provincial fiscal of Negros Oriental and to oust the respondent Romero therefrom. The petition and the memorandum in support thereof among other things contain the following prayer:

(1) Recognizing the right of petitioner Antonio Lacson to hold and occupy the position of provincial fiscal of Negros Oriental; (2) Declaring the respondent Honorio Romero guilty of usurpation, unlawful holding and exercise of the functions and duties of provincial fiscal of Negros Oriental; ordering the exclusion of said respondent from said office; and ordering him to surrender to herein petitioner all records and papers appertaining to said office that may have come into his possession; (3) Ordering respondents provincial treasurer L. J. Alfabeto and provincial auditor Angel Paguia, or their successors in office, to pay herein petitioner his salary commencing June 16, 1949, up to the present time and until herein petitioner shall have legally ceased to be the incumbent of said office; and (4) Ordering respondent Honoro Romero pay the costs. Incidentally, and to serve as background in the consideration of this case, it may be stated that when the nominations of Lacson and Romero to the posts of Provincial Fiscal of Tarlac and Negros Oriental, respectively, were made in May, 1949, Negros Oriental was a second class province with a salary of P5,100 per annum for the post of provincial fiscal, while Tarlac was first class simple with a higher salary of P5,700 per annum for its provincial fiscal. There is therefore reason to believe that the nomination of Lacson to Tarlac or rather his attempted transfer from Negros Oriental to Tarlac was intended and considered as a promotion. At least, there is nothing in the record to show that he was being deliberately eased out of or removed from his post in Negros Oriental. However, the appointments and confirmations, the President raised the province of Negros Oriental to the category of First Class A province with retroactive effect as of January 1, 1949. It is alleged by respondent Romero that after the filing of the present petition, Tarlac was likewise raised to the category of

First Class B province on July 15, 1949 so that thereafter the salary for provincial fiscal in both province is the same, namely, P6,000 each. This might be one of the reasons why petitioner to the Province of Tarlac, preferring accept his nomination to the Province of Tarlac, preferring to remain at his old post of provincial fiscal of Negros Oriental. The determination as to who is entitled to the position of provincial fiscal of Negros Oriental, depends upon the correct answers to several queries such as: (1) Did the Commission on Appointments alone, without his acceptance nomination of Lacson to Tarlac and its confirmation by the thereof create a vacancy in the post of provincial fiscal of Negros Oriental so that Romero could be lawfully appointed to said vacancy? (2) Does the nomination of Lacson to Tarlac and its confirmation by the Commission on Appointments serve as and is equivalent to a removal of Lacson as fiscal of Negros Oriental? If in the affirmative, was that removal and lawful? (3) Could the President who appointed Lacson as provincial fiscal of Negros Oriental remove him at will and without cause, or did the post of provincial fiscal in general have attached to it a tenure of office during which the incumbent may not be removed except for cause? The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of

Borromeo vs. Mariano, 41 Phil. 327, "there is no Power in this country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as Such fiscal of Negros Oriental. As to the second question, it is obvious that the intended transfer of Lacson to Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a removal from his office in Negros Oriental. To appoint and transfer him from one province to another would mean his removal or separation from the first province. The reason is that a fiscal is appointed for each province (see. 1673, Rev. Adm. Code), and Lacson could not well and legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. To be fiscal for Tarlac must mean his removal from Negros Oriental. In the case of Nicolas vs. Alberto, 51 Phil. 370, this Court held that "a transfer of a Justice of the Peace outside of the municipality of which he is appointed is in legal effect a combined removal and appointment." (Decision in this case was reversed by the U. S. Supreme Court [279 U.S. 1411, but on other grounds, leaving the doctrine on transfer and removal undisturbed.) When the transfer is consented to and accepted by the transferees, then there would be no question; but where as in the present case, the transfer is involuntary and objected to, then it is necessary to decide whether the removal is lawful. What is the nature of the office of provincial fiscal? Is it included in the Civil Service? The answer is, undoubtedly, in the affirmative. Article XII, section 1 of our Constitution provides that "a Civil Service embracing all branches and subdivisions of the Government shall be provided by law." Section 668 of the Administrative Code as amended by Com. Act No. 177, sec. 6,

provides that "the Philippine Civil Service shall embrace all branches and subdivisions of the Government;" and section 670 of the same Code provides that "person in the Philippine Civil Service pertain either to the classified or unclassified service." Section 671 of the same code as amended by Commonwealth Act No. 177, section 8 in part provides as follows: Sec. 671. Person embraced in unclassified. The following officers and employees constitute the unclassified service:. (a) A secretary, a sergeant-at-arm, and such other officers as may be required and chosen by the National Assembly in accordance with the Constitution. (b) Officers, other than the provincial treasurers and Assistant Directors of Bureaus or Offices, appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the Government whose appointments are by law vested in the President of the Philippines alone. (c) Elective officers GkHd5cO. xxxxxxxxx From the foregoing, We find that the post of provincial fiscal in the Philippines is included in subsection (b) above-quoted particularly the underlined portion thereof. The law regarding appointment to the post of provincial fiscal is contained in section 66 of the Administrative Code which provides that "the GovernorGeneral (now the President) shall appoint among other officials, Secretaries to Departments, Provincial Treasurers, Provincial Fiscals, Register of Deeds, etc." And, Article VII, section 10(3) of the Constitution provides that the President shall nominate and with the consent of the Commission on Appointments shall appoint among other officials, "all other officers of the

Government whose appointments are not herein otherwise provided for" which clearly includes the office of provincial fiscal. It is therefore clear that a provincial fiscal who is nominated and appointed by the President with the consent of the Commission on Appointments, as was petitioner Lacson, is, under section 671 (b) above-quoted, included in the unclassified service of the Civil Service h8WNIP. The next question arises as to whether the President even with the concurrence or consent of the Commission on Appointments may remove a provincial fiscal without cause. The Constitution itself denies said right. Article XII, section 4 of said instrument provides that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law." This constitutional provision is reproduced word for word in the in the paragraph of sec. 694 of the Rev. Adm. Code, as amended by Commonwealth Act No. 177, section 22. In order to better appreciate the meaning of this constitutional provision as well as the purpose behind it, it is necessary to delve, though ever so lightly into the framing of this basic instrument. The Committee on Civil Service of the Constitutional Convention which drafted the Constitution in its report and in advocating the merit system in connection with a civil service system among other things stated the following: The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service. (Arnego's Framing of the Constitution, Vol. II, p. 886.)

The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1789 by the constitutional right of the President of the United States to act alone in the matter of removals. From the time of Andrew Jackson, the principle of the "To the victor belong the spoils" dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency. . . . . (Ibid, p. 886.) Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurman Commission advocated in its report that "the greatest care should be taken in the selection of officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." The Governor-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these "the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud. Necessity for Constitutional Provisions. The inclusion in the constitution of provisions regarding the "merit system" is a necessity of modern times. As its establishment secures good government, the citizens have a right to expect its guarantee as a permanent institution. . . . . (Ibid. p. 887.) Separations, Suspensions, Demotion, and Transfers. The "merit system" will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law." This means that there should be bona fide reasons and action may be taken only after the employee shall have been given a fair hearing. This affords to public employees reasonable security of tenure. ( Ibid. p. 890.)

It is contended on of the respondent that the power of removal is inherent in the power to appoint and that consequently, the President had the right to remove the petitioner as provincial fiscal of Negros Oriental and transfer him to Tarlac. Ordinarily, where there is no constitutional limitation the contention of the respondent would be tenable; but where as in the Philippines and as already stated the Constitution forbids the removal of a civil service official or employee like the petitioner except for cause as provided by law, said right of the Chief Executive is qualified and limited. That constitutional prohibition is a limitation to the inherent power of the Executive to remove those civil service officials whom he appoints. This is the reason why we find the American cases cited in support of respondent's theory to be inapplicable. The prohibition against removal except for cause contained in our Constitution has no counterpart in the Federal Constitution of the United States. Again, it is contended that the provincial fiscal is not appointed for a fixed term and that there is no tenure of office attached to the post. This contention is without merit. As we have already stated, a provincial fiscal as a civil service official may not be removed from office even by the President who appointed him, and even with the consent of the Commission on Appointments, except for cause. Considering this security and protection accorded a provincial fiscal from arbitrary and illegal removal from office, and considering the provisions of section 1673 of the Administrative Code which among other things provides, that "after December 31, 1932 any city fiscal or assistant city fiscal of Manila, provincial fiscal or deputy provincial fiscal over 65 years of age shall vacate his office, the logical inference is that a provincial fiscal duly appointed, until he reaches the age of 65 has the right to continue in office unless sooner removed for cause. In other words, he enjoys tenure of office, which is duly protected by statute and by the Constitution.

The last part of the report of the Committee on Civil Service of the Constitutional Convention which we have reproduced mentions this tenure of office in its last sentence, "This affords public employees reasonable security or tenure." Speaking of tenure of office of members of the civil service in the Philippines, Professor Sinco in his book on Philippine Political Law has the following to say: Security of Tenure C1Bp4lTg. Nothing can be more demoralizing to a group of civil servants than the fear that they might be removed from their posts any time at the pleasure of their superiors. It goes without saying that a demoralized force is an inefficient form Security of tenure is necessary in order to obtain efficiency in the civil service. For this purpose the Constitution provides that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." (Philippine Political Law by Sinco, p. 350.) In our discussion of the functions of the President, it was there shown that the President's power of removal which is implied from his power of appointment, is very comprehensive and almost unlimited when it affects officers holding purely executive positions. This class of officers, under the rule laid down in the Meyers case, may be removed by the President at practically any time and for any cause. No statutory check, such as a requirement that his order of removal should be subject to the previous consent of the senate or the Commission on Appointments before it could be effective, may be validly placed upon his right to exercise this power. But the provision of the Constitution of the Philippines, which has no counterpart in the Constitution of the United States, makes the tenure of officers and employees in the Civil Service secure even against the President's power of removal and even if the officers should hold purely executive offices. The result is that the scope of the rule

established in the Meyers case is considerably modified and reduced when applied in this jurisdiction. It may only apply in case of executive officers appointed by the President and not belonging to the Civil Service as established by the Constitution. (Ibid. pp. 350-351.). It is also contended by the respondent that neither the Constitution nor the laws passed by the Legislature mention or enumerate the cause or causes for which a civil service official may be removed from office. We find this claim untenable. Section 686 of the Revised Administrative Code, as amended by Commonwealth Act No. 177, section 18 provides that falsification by a civil service official of his daily time record shall render him liable to summary removal and subject him to prosecution as provided by law. A like provision for removal and prosecution is found in section 687 of the same Code, as amended by Commonwealth Act 177, section 19 which deals with political activity and contribution to political fund by civil service employees. Then we have Rule XIII, section 6 of the Civil Service Rules providing thus: 6. Discourtesy to private individuals or to Government officers or employees, drunkenness, gambling, dishonesty, repeated or flagrant violation or neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity due to immoral or vicious habits, incompetency, inefficiency, borrowing money by superior officers from subordinates or lending money by subordinate to superior officers, lending money at exhorbitant rates of interest, willful failure to pay just debts, contracting loans of money or other property from merchants or other persons with whom the bureau of the borrower is in business relations, pecuniary embarrassment arising from reprehensible conduct, the pursuits of private business, vocation, or profession without permission in writing from the chief of the bureau or office in which employed and of the Governor-General (now the President)or proper head of Department, disreputable or dishonest conduct committed

prior to entering the service, insubordination, pernicious political activity, offensive political partisanship or conduct prejudicial to the best interest of the service, or the willful violation by any person in the Philippine civil service of any of the provisions of the Revised Civil Service Act or rules, may be considered reasons demanding proceedings to remove for cause, to reduce in class or grade, or to inflict other punishment as provided by law in the discretion of the Governor-General (now the President) or proper head of Department. No chief of a bureau or office shall knowingly continue in the public service any subordinate officer or employee who is inefficient or who is guilty of any of the above-named derelictions, without submitting the facts through the Director to the Governor-General (now the President) or proper head of Department. The law and civil service rules above referred to clearly provide the causes or some of the causes for removal of civil service officials; and they answer the contention of the respondent on this point iXGJYkxv. Section 64 of the Revised Administrative Code, providing for the particular powers and duties of the Governor-General, now the President of the Republic, in part reads as follows: xxxxxxxxx (b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the United States (now the Philippines), the Governor-General (now the President) may at any time remove a person from any position of trust or authority under the Government of the Philippine Islands. (c) To order, when in his opinion the good of the public service so requires, an investigation or any action or the conduct of any person in the Government service, and in connection therewith to

designate the official, committee, or person by whom such investigation shall be conducted. xxxxxxxxx Section 694 of the Administrative Code as amended Commonwealth Act No. 177, section 22, reads as follows: by

Sec. 694. Removal or suspension. No officer or employee in the civil service shall be removed or suspended except for cause as provided by law. The President of the Philippines may suspend any chief or assistant chief of a bureau or office, and in the absence of special provision, any other officer appointed by him, pending an investigation of charges against such officer or pending an investigation of his bureau or office. With the approval of the head of department, the chief of a bureau or office may likewise suspend any subordinate or employee in his bureau or under his authority pending an investigation, if the charge against such subordinate or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty sw8LqoYaQ0. From the sections above-quoted, the inference is inevitable that before a civil service official or employee can be removed, there must first be an investigation at which he must be given a fair hearing and an opportunity to defend himself. In the case of petitioner Lacson, the record fails to show, neither is there any claim that he has been charged with any violation of law or civil service regulation, much leas investigated and thereafter found guilty so as to authorize or warrant removal from office lhsuoZA. In view of the foregoing, we are constrained to find and to hold that the transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that province was equivalent to and

meant his removal as provincial fiscal of Negros Oriental; that said removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution; that the confirmation of the nomination by the Commission on Appointments did not and could not validate the removal, since the Constitution is equally binding on the Legislature; that a provincial fiscal is a civil service official or employee whose tenure of office is protected by the Constitution; and that Antonio Lacson could not be compelled to accept his appointment as provincial fiscal of Tarlac; that having declined said appointment, he continued as provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in said post to which the respondent could be legally appointed; and that consequently, the appointment of the respondent was invalid. In this connection we may point out that the Constitution having clearly limited and qualified the Presidential power of removal in order to protect civil service officials and employees, secure to them a reasonable tenure of office and thus give the country the benefit of an efficient civil service based on the merit system, this Court could do no less than give effect to the plain intent and spirit of the basic law, specially when it is supplemented and given due course by statutes, rules and regulations. To hold that civil service officials hold their office at the will of the appointing power subject to removal or forced transfer at any time, would demoralize and undermine and eventually destroy the whole Civil Service System and structure. The country would then go back to the days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the elections could if so minded, sweep out of office, civil service employees differing in political color or affiliation from him, and sweep in his political followers and adherents, especially those who have given him help, political or otherwise. A Chief Executive running for re-election may even do this before election time not only to embarrass and eliminate his political enemies from office but also to put his

followers in power so that with their official influence they could the better help him and his party in the elections. As may be gathered from the report of the Committee of the Constitutional Convention which we have reproduced at the beginning of this opinion, the framers of our Constitution, at least the Civil Service Committee thereof, condemned said spoils system and purposely and deliberately inserted the constitutional prohibition against removal except for cause, which now forms the basis of this decision. There are hundreds, yea, thousands of young, ambitious people who enter the Civil Service not temporarily or as a makeshift, but to make a career out of it. They give the best years of their lives to the service in the hope and expectation that with faithful service, loyalty and some talent, they may eventually attain the upper reaches and levels of official hierarchy. To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition. Incidentally, it happens that the petitioner is one of those we had in mind as making a career of the Government service. He claims and it is not denied by the respondent, that twenty years ago he entered the service of the Government as register of deeds of Negros Oriental, then was promoted to the post of fiscal, first of

the Province of Palawan, then of Surigao, later of Antique and lastly of Negros Oriental in 1946. He does not want to accept the transfer to the Province of Tarlac. His only alternative would be to resign, sacrifice his twenty years of continuous, faithful service and his career, and perchance his hope that some day, he might yet be promoted to the judiciary. Not a very bright prospect or picture, not only to him but to other civil service officials in like circumstance. But in justice to the President and the Commission on Appointments, let it be stated once again that it would seem that the transfer of the petitioner to Tarlac was not meant and intended as a punishment, a disciplinary measure or demotion. It was really a promotion, at least at the time the appointment was made. Only, that later, due to a change in the category of Oriental Negros as a province, the transfer was no longer a promotion in salary. And yet the respondent and the Solicitor General insisted in the transfer despite the refusal of the petitioner to accept his new appointment. In conclusion, we find and declare the petitioner to be the provincial fiscal of Negros Oriental, and the respondent not being entitled to said post, is hereby ordered to surrender to the petitioner all the records or papers appertaining to said office that may have come into his possession. The respondent provincial auditor and provincial treasurer, are hereby ordered to pay to the herein petitioner his salary from June 16, 1949, and as long as said petitioner continues to be the legal incumbent to the office in question. Considering that the respondent appears to have acted in good faith and relied upon his nomination by the President and the confirmation thereof by the Commission on Appointments, as well as the position taken by the SolicitorGeneral, who sustained his appointment, we make no pronouncement as to costs.

G.R. No. L-32271 January 27, 1983 MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as Chief of Police; FRANCISCO TISADO, OCTAVIO TRAYA as Municipal Mayor; DOMINGO IPONG as Municipal Treasurer; and THE MUNICIPAL COUNCIL OF ABUYOG, LEYTE, petitioners, vs. HONORABLE LOPE C. QUIMBO, Judge of the Court of First Instance of Leyte, and HIGINIO VERRA, respondents. Zoila M Redorta and Bonifacio M. Batol for petitioners. Leonardo L. Leonids and Francisco Aurillo for private respondent.

GUTIERREZ, JR., J.: In this petition for review, the petitioners seek the annulment or reversal of the decision of the Court of First Instance of Leyte in Civil Case No. 3606, entitled Higinio Verra v. Marcial Costin et al. In that case for a writ of quo warranto with mandamus, the respondent court declared Verra entitled to reinstatement with payment of salaries for the whole period from his illegal separation from the service to the date of his reinstatement. Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte since January 1, 1949. He was extended a promotional appointment as sergeant of police on October 15, 1958. On November 25, 1959, the outgoing municipal mayor of Abuyog accorded Lajer another promotional appointment as chief of police. This last appointment was not attested and approved as required by law. On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the police department. On the same day, the municipal mayor extended to respondent Higinio Verra a permanent appointment as Chief of Police of Abuyog with a salary of P2,280.00 per annum. Verra immediately took over the position. His appointment was eventually approved as permanent under Section 24 (b) of Republic Act 2260 by the Commissioner of Civil Service.

On January 19, 1960, Lajer and the eight members of the police force filed an action for mandamus (Civil Case No. 2713) against the municipal mayor, municipal treasurer and the municipal council of Abuyog, contesting their separation from the service. While this petition for mandamus was pending, there was again a change in the municipal administration of Abuyog, Leyte as a result of the 1963 local elections. The newly elected municipal mayor dismissed respondent Verra from office on January 16, 1964. Verra was replaced by Victoriano Silleza officer-in-charge, on January 17, 1964 until October, 1964 when petitioner Marcial Costin was appointed chief of police. On December 29, 1964, respondent Verra filed Civil Case No. 3606 for quo warranto with mandamus against Marcial Costin the municipal mayor, and the municipal treasurer, questioning the legality of his separation alleging that he could not be dismissed as chief of police because he was a civil service eligible and in possession of an appointment to the position of chief of police of Abuyog, Leyte duly attested "Permanent" by the Civil Service Commission. On January 22, 1966, the mandamus suit (Civil Case No. 2713) filed by Lajer and his companions, which had been appealed was decided by the Court of Appeals CA-G.R. No. 29313-R). The appellate court found that Lajer ,Tomines and Jervoso "were illegally removed from office and are, the afore entitled to reinstatement to their respective positions with payment of the salaries they failed o receive. " As a result of the appellate decision, petitioner (then mayor) Tisado reinstated Lajer as chief of police on April 1, 1966. On July 24, 1966, respondent Verra amended his petition in Civil Case No. 3606, impleading Lajer as additional respondent therein. On November 7, 1968, respondent Verra filed a second amended petition including as respondents the following: Octavio Traya, who succeeded Tisado as mayor; Lionel Kanen who succeeded Lajer as chief of police Lajer retired from the service on February 1, 1968); Domingo Ipong who succeeded Cuyno (deceased) as municipal treasurer; and the Municipal Council of Abuyog, which appropriates funds for the office in question.

On December 2, 1969, respondent judge rendered his decision in Civil Case No. 3606, declaring that Verra is entitled to reinstatement with salary to be paid to him for the Whole period of his illegal separation to the date of his reinstatement. The court also ordered the municipal mayor to reinstate Verra immediately and the municipal treasurer to pay his salary. This decision is now before us for review. Hence, the present petition with the following assignments of errors: I. THAT THE HONORABLE COURT A QUO ERRED IN DECLARING THAT THE COURT OF APPEALS IN ITS DECISION ON CIVIL CASE C.A.-G.R. NO. 29313-R (Civil Case No. 2713), CFI, LEYTE) ORDERED THE REINSTATEMENT OF PETITIONER ESTANISLAO LAJER TO THE POSITION OF SERGEANT OF POLICE OF ABUYOG, LEYTE AND NOT TO THE POSITION OF CHIEF OF POLICE; II. THAT THE HONORABLE COURT A QUO ERRED IN NOT DECLARING THAT THERE WAS NO VACANCY IN THE OFFICE OF CHIEF OF POLICE OF ABUYOG, LEYTE TO WHICH RESPONDENT HIGINIO VERRA COULD HAVE BEEN VALIDLY AND EFFECTIVELY APPOINTED; III. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT THE ISSUE INVOLVED IN THIS CASE IS THE LEGALITY OF RESPONDENT HIGINIO VERRAS REMOVAL FROM THE SERVICE AS CHIEF OF POLICE AND NOT THE VALIDITY OF HIS APPOINTMENT THERETO; IV. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT THE SEPARATION OF RESPONDENT HIGINIO VERRA FROM THE OFFICE OF THE CHIEF OF POLICE WAS ILLEGAL; V. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT RESPONDENT HIGINIO VERRA NOT BEING A PARTY IN CIVIL CASE NO. 2713 CFI LEYTE) FOR MANDAMUS, IS NOT BOUND BY ITS DECISION THEREON; VI. THAT, FINALLY, THE HONORABLE COURT A QUO ERRED IN ORDERING THE REINSTATEMENT OF OFT MENTIONED HIGINIO VERRA TO THE POSITION OF CHIEF OF POLICE.

The foregoing assignments of errors may be narrowed down to the following issues: 1. Whether or not the appointment of respondent Higinio Verra to the position of Chief of Police of Abuyog, Leyte, was valid and consequently his removal therefrom illegal. 2. Whether the Court of Appeals in its decision in C.A.-G.R. No. 29313-R (Civil Case No. 2713-CFI, Leyte) ordered the reinstatement of petitioner Lajer to the position of Sergeant of Police or Chief of Police. 3. Whether or not respondent Verra is bound by the decision of the lower court in Case No. 2713-CFI, Leyte, for mandamus, not being a party to it. With respect to the first issue, the petitioners argue that the appointment issued in favor of respondent Verra as chief of police on January 14, 1960, was invalid and ineffective because the said position was not vacant from the time Lajer was illegally separated on January 14, 1960, up to the time he was actually reinstated. This is, according to the petitioners, premised on the fact that the Court of Appeals in deciding Civil Case No. 2713, CFI- Leyte, ordered Lajers reinstatement which also legalized the dismissal of respondent Verra. Respondent Verra on the other hand, contends that the office in question was legally vacant when he was appointed thereto because Lajers appointment was never attested as required by law or incomplete, and, therefore, never became effective. It is further contended that Lajers appointment as chief of police was temporary in character and terminable at the pleasure of the appointing authority and when Lajer was separated from the office of chief of police, the position became legally and physically vacant. Verra also claims that since he is a civil service eligible and his appointment as chief of police was attested as permanent under Section 20 of Republic Act 2260 and served as such for four (4) years and two (2) days when he was dismissed without cause, his dismissal is illegal. We find the petition meritorious. When respondent Verra was appointed chief of police on January 14,

1960, Lajer had just been dismissed from office with several other members of the police force. The validity of Verras appointment, therefore, hinges on the legality of Lajers removal. It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appoint. ment validly terminated. The lower court's error lies in its looking at the issues primarily from the viewpoint of Verras removal, his qualifications and eligibility for the position, and whether or not his dismissal was valid. In the process, the lower court overlooked the fact that Verra could not have been permanently appointed to the contested position because no less than the Court of Appeals had declared that his predecessor, Estanislao Lajer was illegally terminated from office and must be reinstated to his former position. Respondent Verra argues that Lajers appointment as chief of police was temporary and terminable at the pleasure of the appointing power. The private respondent is correct in asserting that when the promotional appointment of Lajer was made in 1959, it could not be considered final or complete. Under Section 2(a) of Rule VI, the Civil Service Rules implementing Section 16(g) of Republic Act 2260, an appointment extended by an officer duly empowered to make it is not final and complete until after the Commissioner of Civil Service has certified that such an appointment may be made. (Gorospe v. Secretary of Public Works and Communications et al. 105 Phil. 129L) It is likewise true that under Section 20 of Republic Act 2260 which, in part, provides: SEC. 20. Delegation in the Civil Service Commission and to the Agencies. -... Appointments by ... municipal mayors shall become effective upon issuance of such appointments and upon attestation by the provincial treasurer in the case of appointments made by ... municipal mayors ... . All appointments made by the ... municipal mayors ... shall, after being attested to by the respective provincial

treasurer ... be forwarded within ten days to the Commissioner of Civil Service for review pursuant to Civil Service law and rules. If within one hundred eighty days after receipt of said appointments, the Commissioner of Civil Service shall not have made any correction or revision, then such appointments shall be deemed to have been properly made. ... the attestation by the provincial treasurer of Leyte was necessary to make the appointment of petitioner Lajer effective.* However, these requirements could not be complied with because Lajer who had been appointed on November 25, 1959 was replaced on January 14, 1960 by the new mayor of the municipality who appointed Verra in his stead As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1076), the incoming mayor should have awaited the action of the provincial treasurer and later, the Commissioner of Civil Service, before appointing his own protege to a position with an incumbent occupying it. Respondent Verra cannot rely on the absence of an attestation from the provincial treasurer and a certification from the Civil Service Commissioner insofar as Lajers appointment is concerned because by the fact of Verras appointment, these requirements could no longer be fulfilled. Mayor Octavio Traya took the appointments away from the office of the Provincial Treasurer before they could be acted upon. The Commissioner could no longer act within 180 days. The insuperable factor, however, which stands in the way of Verras reinstatement with backwages for eighteen (18) years from 1964 to the present is the Court of Appeals decision in Lajer et al. v. Traya et al. (CA- G.R. No. 29313-R, January 22, 1966). The Court of Appeals was presented squarely with the issue of whether or not Estanislao Lajer and seven other petitioners were illegally separated from the service by Mayor Octavio Traya In a decision penned by Justice Salvador V. Esguerra, concurred in by Presiding Justice Conrado V. Sanchez and Justice Magno S. Gatmaitan, the First Division of the Court of Appeals ruled that Estanislao Lajer Mariano Tomines, and Melecio Jervoso were illegally removed from office and must be reinstated. Respondent's Verra now contends that Lajer was ordered reinstated to the position of sergeant and not chief of police. Mr. Verra cannot read into a Court of Appeals decision something which is not there.

Mr. Lajer did not go to court to contest the position of police sergeant or to question his removal as police sergeant, He was never removed from a position as sergeant of police, Lajer filed a petition for mandamus to be reinstated as chief of police. The January 30, 1961 decision of Judge S. C. Moscoso of tile Court of First Instance of Leyte discusses an appointment as chief of police. When the decision ordering Lajers reinstatement, was appealed to the Court of Appeals, the appellate court specifically described petitioner Lajer as chief of police and petitioner Mariano Tomines as police sergeant. When Lajer and Tontines were ordered reinstated, it was to the said positions as chief of police and police sergeant respectively. The argument of respondent, Verra that Mayor Tisado should have refrained from reinstating Lajer as chief of police notwithstanding the decision of the Court of Appeals because he, Verra had filed a case with the Court of First Instance contesting the same position betrays a lack of understanding of a final and executory decision of an appellate tribunal. The decision of the Court of Appeals superseded any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and the same facts. It was precisely the termination of Lajers promotional appointment as chief of police which the appellate court struck down. Since Lajer was not validly terminated from public office and, as a matter of fact, was ordered reinstated through a warrant of mandamus, it follows that there was no vacancy in the office of chief of police on January 14, 1960 and there was no office to which Higinio Verra could have been appointed. The discussions in the decision of the respondent judge on whether or not Higinio Vera was validly removed from office are all beside the point. Never having been validly appointed, there was no office from which he was illegally dismissed. At most, he was a de facto officer during the years when Lajer was litigating his action for reinstatement in the court of first instance and in the court of appeals. And as earlier stated, the certification by the Commissioner of Civil Service that Mr. Verra possessed the qualifications and the eligibility, doubtful though the latter may be, for the position of chief of police could not have made the proceedings. in court moot and academic much less rendered inutile the 1966 decision of the Court of Appeals granting the petition for a writ of mandamus in Lajers favor.

Moreover, the equities of the case do not lean towards respondent Verra Estanislao Lajer had been a member of the Abuyog police force since January 1, 1949. He had passed the patrolman's examination, was promoted to corporal, later to sergeant, and finally to chief of police in his tenth year of service. On the other hand, Higinio Verra was a school teacher with apparently no police experience whatsoever when he was appointed chief of police on January 14, 1960. It is too late in the day now to debate the correctness of the Court of Appeals decision that non- attestation was not sufficient cause for outright removal. The decision has long been final and was implemented in 1966. There is similarly no point in resolving the issue as to who has better qualifications and more nearly appropriate eligibility for the position of chief of police a police sergeant with ten years experience and patrolman's eligibility or a school teacher with a senior teacher's eligibility. Verra asks if he should be bound by the decision of the Court of Appeals, not having been a party to the case. The issue before the Court of First Instance and the Court of Appeals was whether or not the Mayor, Municipal council, Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally terminated the chief of police. sergeant of police, and six other members of the, police force from their respective offices and whether or lot mandamus may issue to compel their reinstatement. mandamus having issued, any person whether Mr. Higinio Verra or any other appointee to the contested position must give up the office in favor of the officer adjudged by the courts to be entitled to it. WHEREFORE, the instant petition is hereby granted. The decision of the respondent court in Civil Case No. 3606 is reversed and set aside and the petition for quo warranto with mandamus filed in the court a quo is ordered dismissed. SO ORDERED.

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. Petitioner's 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. 2 The Ministry of Finance, however, referred petitioner's 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 government's 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. 3

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

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 exofficio 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, VicePresident, Members of the Cabinet and their deputies or assistants. There is no dispute that the prohibition against the President, VicePresident, 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, allembracing 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 exofficio 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, VicePresident, 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.

G.R. No. 86564 August 1, 1989 RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent.

CRUZ, J.: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated. The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election. The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1 For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a preproclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date. The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These

rules could not retroact to January 26,1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the firstmentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite

such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6

xxx While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states: ... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43) Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends

of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162). Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality. 7
l wph1.t

xxx
Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case. Going over the record, we find that there are two administrative

decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11 The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian. The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition

for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen. E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship: (i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or (ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13

Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976. 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance. Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18 The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen." The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by

repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: ... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.) That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect. The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead

over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city. The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26 Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any

dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court held: ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself

disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring: As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines. What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the

rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion. Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

April 29, 1963 G.R. No. L-16924 ANTONIA A. YEE, petitioner-appellee, vs. THE DIRECTOR OF PUBLIC SCHOOLS, The Division Superintendent of Schools of Antique, HON. SECRETARY OF EDUCATION, and Hon. COMMISSIONER OF CIVIL SERVICE, respondents-appellants. Acsay and Associates and Silvestre E. Untaran, Jr. for petitionerappellee. Office of the Solicitor General for respondents-appellants. Padilla, J.: This is an appeal from a judgment rendered by the Court of First Instance of Antique . . . declaring illegal and contrary to law the removal of the petitioner from her position as school teacher in the Division of Antique on October 28, 1957, and ordering the respondents to reinstate the petitioner forthwith to her former position, with all the privileges appurtenant thereto, and to cause to be paid her salary of P140.00 a month from November 1, 1957 until the date of her reinstatement, without pronouncement as to costs (Civil Case No. 12) upon a stipulation of facts submitted by the parties which is, as follows: 1. That the petitioner was a public school teacher and had been appointed as such teacher in the Division of Antique in 1951; 2. That the petitioner was a civil service eligible as a regular national teacher having passed the Junior Teachers' (Regular)

Examination that was given on or about December 29, 1955; 3. That the petitioner was receiving a monthly salary of P140.00 as such teacher; 4. That in the school year 1957-1958 the petitioner was actually teaching in the Buhang Elementary School, Buhang Hamtic, Antique; 5. That petitioner having married Mr. Ng Foo alias Pio Chet Yee, a Chinese citizen, on August 10, 1957 is presently a Chinese citizen; 6. That effective sometime on October 28, 1957 the petitioner was removed from her teaching service by virtue of Special Order No. 296, series of 1957, dated October 25, 1957, issued by the Division Superintendent of Schools of Antique hereto attached as "Annex A", and this was pursuant to the 2nd indorsement of the Director of Public Schools dated October 14, 1957, hereto attached (as) "Annex B", disauthorizing the continuance in the service of the petitioner on account of Circular No. 40, series of 1947, hereto attached as "Annex C"; 7. That prior to the effectivity of the order of removal the petitioner wrote a letter to the Commissioner of Civil Service dated October 25, 1957 hereto attached as "Annex D"; 8. That petitioner wrote another letter dated September 26, 1958 addressed to the Division Superintendent of Schools of Antique asking for reinstatement which is hereto attached as "Annex E"; 9. That Special Order No. 296 of the Division Superintendent of Schools of Antique (Annex A) the ruling of the Director of Public Schools in his 2nd indorsement dated October 14, 1957 (Annex B), and Circular No. 40, series of 1947 (Annex C) had never been appealed by the petitioner to the Secretary of Education;

10. That when this case was filed sometime on October 11, 1958, the original respondents were only the Director of Public Schools and the Division Superintendent of Schools of Antique; 11. That the petitioner came to know for the first time of the actions taken on her letter of October 25, 1957 (Annex D) herein, sometime on January 9, 1959 when the respondents Division Superintendent of Schools and the Director of Public Schools submitted their evidence in support of their motion to dismiss and which documents are hereto attached as Annexes F, F-1, F-2, F-3, F-4, F-5 and F-6 wherein it appears that the Secretary of Education in its 3rd indorsement dated March 17, 1958 (Annex F-3) concurs with the recommendation of the Director of Public Schools for denial of the reinstatement of the petitioner to the service (Annex F-4) and that on August 26, 1958, in its 4th indorsement the Commissioner of Civil Service likewise concurs in the action separating Mrs. Antonio A. Yee from the teaching service(Annex F-2); 12. That petitioner learned of the actions taken by the respondents on her letter dated September 26, 1958 (Annex E) sometime in May, 1959 and which actions are embodied in the indorsements hereto attached as Annexes G, G-1, G-2, G-3, G4, G-5, G-6 and G-7 indicating that in the 3rd indorsement dated February 2, 1959 (Annex G-4) the Secretary of Education ruled that Mrs. Antonia A. Yee is still disqualified from holding any position in the teaching service reiterating its position previously stated in the 3rd indorsement dated March 17, 1958 relative to the same matter (Annex F-3), and that this reiterated ruling of the Secretary of Education was duly noted by the Commissioner of Civil Service on March 24, 1959 (Annex G-3); 13. That the original petition for mandamus was filed on October 11, 1958 against the Director of Public Schools and the Division Superintendent of Schools as the stated respondents; that by

virtue of the order of the Court, dated February 16, 1959, deferring the determination of said motion to dismiss, respondents' answer to the original petition was submitted to the Court on February 16, 1959; that on February 18, 1959 petitioner filed a motion for leave to include the Secretary of Education and the Commissioner of Civil Service as corespondents; that to this motion, an opposition to the same was filed on February 20, 1959 by the original respondents; that in its order of February 23, 1959 the Court ordered the joining of the Secretary of Education and the Commissioner of Civil Service as additional respondents; 14. That on February 23, 1959, petitioner submitted her amended petition for mandamus wherein the additional respondents have been included, to which a motion to dismiss dated April 7, 1959 was filed by the respondents and said motion to dismiss was denied by the Court in its order of July 24, 1959, but in that same order, petitioner was directed to amend its petition to include averments of the cause of action against the Secretary of Education and the Commissioner of Civil Service; that on July 30, 1959, an amended petition for mandamus was filed by the petitioner against all the herein respondents and the corresponding answer to the amended petition was submitted in behalf of the same respondents on July 31, 1959 xxxxxxxxx The questions to determine are whether the appellee's removal as public school teacher from the Buhang Elementary School, Hamtic, Antique, is illegal; whether she has a cause of action against the appellants and by mandamus proceedings may secure reinstatement to her former position; and whether she has exhausted all administrative remedies.Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their

case not covered by this stipulation of facts. A cause of action exists if upon the facts alleged in a complaint admitted by the adverse party or proved by admissible and credible evidence a valid judgment may be rendered by a competent court. In her petition for mandamus the appellee alleges that she was illegally removed from her teaching position. If that allegation be established or proved, a valid judgment may be rendered reinstating her to her position. Hence, a cause of action exists against those responsible for her removal from her position and the remedy of mandamus is available to secure her reinstatement thereto. There is, however, no doubt that her removal as a public school teacher because of loss of Filipino citizenship is legal. Not being included in section 671 of the Revised Administrative Code which enumerates the officers and employees constituting the unclassified service, teaching in a public school is in the classified service a public function which may be performed by Filipino citizens only. An applicant for admission to examination for entrance into the civil service must be a citizen of the Philippines (section 675 of the Revised Administrative Code). And after he had qualified himself to be eligible for appointment to a civil service position and had been appointed to such position, he must continue to be such citizen. A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he had qualified and had been appointed. Such being the case, upon the appellee's marriage on 10 August 1957 to Ng Foo alias Pio Chet Yee, a Chinese citizen, the appellee ceased to be a citizen of the Philippines, and for that reason she is no longer qualified to continue holding the civil service position to which she had qualified and had been appointed. Section 681 of the Revised Administrative Code which provides that

In making selection from lists of certified eligibles furnished by the Commissioner, appointing officer shall, when other qualifications are equal, prefer: First. Citizens of the Philippines. Second. Honorably discharged soldiers, sailors, and mariners of the United States, is no argument against the limitation of holding public offices to citizens of the Philippines. The preference provided for in the section quoted above was operative during the period before 4 July 1946 or before the Philippines became an independent nation. IN VIEW OF THE CONCLUSION ARRIVED AT, the point of exhaustion of administrative remedy need not be passed upon. The judgment appealed from is reversed and petition denied, without pronouncement as to costs in both instances.

G.R. No. 145368

April 12, 2002

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent. KAPUNAN, J.: On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 "constituting a Committee for the preparation of the National Centennial Celebration in 1998." The Committee was mandated "to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress."1 Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconstituting the Committee for the preparation of the National Centennial Celebrations in 1988." It renamed the Committee as the "National Centennial Commission." Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons.2 Characterized as an "i body," the existence of the Commission "shall terminate upon the completion of all activities related to the Centennial Celebrations."3 Like its predecessor Committee, the Commission was tasked to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress." Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to "prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of" the Executive Order. E.O. No. 128 also contained provisions for staff support and funding: Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed of, among others, detailed personnel from the Presidential Management

Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall be designated by the President. Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the presidents Contingent Fund, in an amount to be recommended by the Commission, and approved by the President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President. Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created.4 Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer. On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation. On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens committee to investigate all the facts and circumstances surrounding the Philippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee. On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committees recommendations was "the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the

FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation of the anti-graft law."5 Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended "the further investigation by the Ombudsman, and indictment, in proper cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code. The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report, recommending: 1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.6 In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses. On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss. On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order dated October

5, 2000. On October 25, 2000, petitioner filed the present petition for certiorari. On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution also directed that an information for violation of the said law be filed against Laurel and Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Pea. In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: A. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION. B. THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7 In addition, petitioner in his reply8 invokes this Courts decision in Uy vs. Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. This last contention is easily dismissed. In the Courts decision in Uy, we held that "it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan." In its Resolution of February 22, 2000, the Court expounded: The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.] The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside

the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is

merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in the original.] Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was not a public officer. The Constitution10 describes the Ombudsman and his Deputies as "protectors of the people," who "shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations." Among the awesome powers, functions, and duties vested by the Constitution11 upon the Office of the Ombudsman is to "[i]nvestigate any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient."

The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law respectively provide: SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x. The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra: SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.12 Neither the Constitution nor the Ombudsman Act of 1989, however,

defines who public officers are. A definition of public officers cited in jurisprudence13 is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.14 The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.15 Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive?

We hold that the NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance."17 The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof: Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project; x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the "need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and non-government or private organizations." It also referred to the "need to rationalize the relevance of historical links with other countries." The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the Commission was vested with the following functions: (a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard, it shall include a Philippine National Exposition 98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; (b) To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; (c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations; (d) To constitute working groups which shall undertake the implementation of the programs and projects; (e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate-transfer, and similar arrangements) to ensure the preservation and maintenance of the historical sites and structures; (f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks; and,

(g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the preparations for the Celebration.18 It bears noting the President, upon whom the executive power is vested,19 created the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders: SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.] Furthermore, the NCC was not without a role in the countrys economic development, especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court: MR. JUSTICE REYNATO S. PUNO: And in addition to that expounded by Former President Ramos, dont you agree that the task of the centennial commission was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting investors in the area because of the eruption of Mt. Pinatubo. FORMER VICE PRESIDENT SALVADOR H. LAUREL: I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am a Batangeo but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the

development of Central Luzon. Now, I think they are going back to that because they had the airport and there are plan to revive the Expo site into key park which was the original plan. There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy.20 Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the "holding of a nationwide celebration which marked the nations 100th birthday may be likened to a national fiesta which involved only the exercise of the national governments proprietary function."22 In Torio, we held: [Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is government in essence, otherwise, the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta. Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned that "there can be no hard and fast rule for purposes of determining the true nature of an

undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive." Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the "surrounding circumstances plus the political, social, and cultural backgrounds" could produce a conclusion different from that in Torio: We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander alleged to have been caused by defendants negligence. The defendants demurred to the complaint invoking the defense that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia: Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties, unless made liable by statute. A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R. 51) This decision was concurred in by three Judges while two dissented. At any rate the rationale of the Majority Opinion is evident from [this] excerpt: "July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly

all of the other states have similar statutes. While there is no United States statute making a similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x x" Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an opportunity to "showcase Filipino heritage and thereby strengthen Filipino values." The significance of the Celebrations could not have been lost on petitioner, who remarked during the hearing: Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud of what our forefather did in their time. x x x. Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not

conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good.23 Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached.24 But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer." At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior."25 Our conclusion that petitioner is a public officer finds support in In Re Corliss.26 There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and

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

exhibition." It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that "no compensation for services shall be paid to the commissioners or other officers, provided for in this act, from the treasury of the United States." The only other officers provided for were the "alternates" appointed to serve as commissioners when the commissioners were unable to attend. Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair.27 Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the

following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows: SEC. 2. Definition of terms. As used in this Act, the term xxx (b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined in the preceding paragraph. [Emphasis supplied.] It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of several laws that define "public officers." Article 203 of the Revised Penal Code, for example, provides that a

public officer is: x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29 on the other hand, states: Officer as distinguished from "clerk" or "employee", refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a "public official" whether or not one receives compensation, thus: "Public Officials" include elective and appointive officials and employees, permanent or temporary, whether in the career or noncareer service including military and police personnel, whether or not they receive compensation, regardless of amount. Which of these definitions should apply, if at all? Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term "compensation," which is not defined by said law, has many meanings. Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages.30

How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and compensation.31 Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED.

G.R. No. L-30188

October 2, 1928

FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE ELUM, petitioners, vs. NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B. CACNIO, as Provincial Fiscal of Oriental Negros, and JUAN GADIANI, respondents. Abad Santos, Camus and Delgado and Teopisto Guingona for petitioners. Araneta and Zaragoza for respondents. The respondent Judge in his own behalf.

OSTRAND, J.: This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of certain civil and criminal election cases in which the petitioners are parties. The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First Instance of Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases for violation of the election law filed in the Court of First Instance of Oriental Negros arising in the Court of First Instance of Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and acted as auxiliary judge of the Province of Oriental Negros; that between the auxiliary judge and the respondent judge herein there was an understanding, and the assignment of the said auxiliary judge was made with this understanding, that the said auxiliary judge so designated would hear and take cognizance of all election protests and criminal actions then pending or to filed arising from the said last general election, and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary cases pending in the said court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still

trying to take cognizance of the election protests an criminal actions in said court; that the respondent judge declared in open court that he will try the criminal cases herein mentioned for the reason that the auxiliary judge refused to try the same on the ground that the preliminary investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make the statement imputed to him and was and is still willing to try the election protests and criminal cases for violation of the election law pending in the court of the Province of Oriental Negros; that the respondent Honorable Nicolas Capistrano, in spite of the fact that he was holding and is now pretending to hold the office of judge of the Court of First Instance of Oriental Negros, took great interest and active part in the filing of criminal charges against the petitioners herein to the unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations, when the provincial fiscal refused to file criminal charges against the petitioners for violation of the election law for lack of sufficient evidence to sustain the same; that said respondent is neither a judge de jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the Court of First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the said province; and that he has tried, and continues to try, to act as such judge and that there is reasonable ground to believe that he will take cognizance of the cases in question unless he be restrained by order of this court; that in acting as a duly qualified judge notwithstanding the facts alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to act without and in excess of jurisdiction and also after the loss of jurisdiction. To this petition the respondents demur on the ground that the facts stated in that (1) none of the facts alleged in the petition divest the respondent judge of his jurisdiction to take cognizance of the cases referred to in the complaint, and (2) even admitting as true, for the sake of this demurrer, the facts alleged in paragraph 7 of the petition, the respondent judge is still a de facto judge and his title to the office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a substitute for quo warranto, or be rightfully called upon to perform any of the functions of that writ.

The ground upon which the petition rests may be reduced to three propositions. (1) That the assignment of the Auxiliary Judge, Sixto de la Costa, to Dumaguete was made with the understanding that the he was to hear and take cognizance of all election contests and criminal causes for violation of the election law and that the respondent judge was to take cognizance of the ordinary cases and that there was an understanding between them that this arrangement was to be followed. (2) That the respondent judge took great interest and an active part in the filing of the criminal charges against the petitioners herein to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the regular provincial fiscal refused to file them for lack of sufficient evidence. (3) That the respondent judge is already over 65 years of age and has, therefore, automatically ceased as judge of the Court of First Instance of Oriental Negros and that he is neither a judge de jure nor de facto. (a) But little need be said as to the first proposition. A writ of prohibition to a judge of an interior court will only lie in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it is obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent judge of the jurisdiction conferred upon him by law. It may be noted that it is not alleged that another judge had taken cognizance of the cases in question or that they had been definitely assigned to trial before such other judge. (b) The second proposition is equally untenable. That the respondent judge took great interest and an active part in the filing of the criminal charges against the petitioners to the extent of appointing a deputy fiscal when the regular provincial fiscal refused to file the proper informations, did not disqualify him from trying the case in question. Section 1679 of the Administrative Code provides that "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail, to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall appoint an acting
1awph!l.net

provincial fiscal, . . . ." (Emphasis ours.) The determination of the question as to whether the fiscal has failed to discharge his duty in the prosecution of a crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge, and there is no allegation in the petition that such discretion was abused in the present instance. It is true that it is stated that the appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of law and not an allegation of facts upon which such a conclusion can be formed and may, therefore, be disregarded. It follows that in appointing an acting fiscal, the respondent judge was well within his jurisdiction. (c) The third ground upon which the petition is based is the most important and merits some consideration. It is well settled that the title to the office of a judge, whether de jure or de facto, can only be determined in a proceeding in the nature of quo warranto and cannot be tested by prohibition. But counsel for the petitioners maintains that the respondent judge is neither a judge de jure nor de facto and that, therefore, prohibition will lie. In this, counsel is undoubtedly mistaken. The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of Oriental Negros, but section 148 of the Administrative Code, as amended, provides that "Judges of the Court of First Instance and auxiliary judges shall be appointed to serve until they shall reach the age of sixty-five years." In view of this provision and assuming, as we must, that the allegations of the petition are true, it is evident that the respondent is no longer a judge de jure, but we do not think that it can be successfully disputed that he is still a judge de facto. Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and whose term of office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van Slyke vs. Farmers'

Mut. Fire Ins. Co., 39 Wis., 390). Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an incumbent of an office will hold over after the conclusion of his term until the elction and qualification of a successor (22 R. C. L., pp. 5545). When a judge in good faith remains in office after his title has ended, he is a de facto officer (Sheehan's Case, 122 Mass., 445). Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular judge seems obviously erroneous. In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full exercise of his public judicial function, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned. The rule is the same in civil criminal cases. The principle is one founded in policy and convenience, for the right of no one claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it were necessary in every case to examine the legality of the title of such officer up to its original source, and the title or interest of such person were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be maintained, or their execution enforced,

if the acts of the judge having a colorable, but not a legal title, were to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in question in any suit to which he is not a party. The official acts of a de facto justice cannot b attacked collaterally. An exception to the general rule that the title of a person assuming to act as judge cannot be questioned in a suit before him is generally recognized in the case of a special judge, and it is held that a party to an action before a special judge may question his title to the office of a judge on the proceedings before him, and that the judgment will be reversed on appeal, where proper exceptions are taken, if the person assuming to act as special judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a judgment rendered by him. Having at least colorable right to the office his title can be determined only in a quo warranto proceeding or information in the nature of a quo warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.) The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the petition cannot be cured by amendment the present proceedings are hereby dismissed with the costs against the petitioners jointly and severally. The preliminary injunction hereinbefore issued is dissolved. So ordered.

G.R. No. L-3913

August 7, 1952

EULOGIO RODRIGUEZ, SR., plaintiff-appellant, vs. CARLOS TAN, defendant-appellee. Ramon Diokno and Jose W. Diokno for appellant. Agustin Alvarez Salazar for appellee. BAUTISTA ANGELO, J.: Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances and the sum of P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully belongs to the former from December 30, 1947, to December 27, 1949. Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400; that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest. On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the Senate Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other, that said Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the protest. The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint with costs. From this order plaintiff has appealed. The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, not a statement of fact, inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein. Hence such

averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy Chanco & Sons & Co., 34 Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which says that defendant was one of those proclaimed elected as Senator in the general elections held on November 11, 1947. Defendant, cannot, therefore, be considered a usurper as claimed in the complaint. With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the Senate Electoral Tribunal. . Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and, as such, he was during the time he discharged that office a mere de facto officer, he should reimbursed to the plaintiff the salaries and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a rule tends to curb election frauds and lessens the danger and frequency of usurpation or instrusion into the office. Plaintiffs invites the attention of the Court to the annotation appearing in 93 A.L.R. 258,273 et seq., supplemented in 151 A.L.R. 952, 960, et seq., wherein more than 100 cases are cited in support of the rule. Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in the present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to collect and received the salaries and emoluments thereunto appertaining as a compensation for the salaries he has rendered. Defendants avers

that plaintiff already attempted to seek the reimbursement of the salaries and emoluments he had received in the protest he has filed against him Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and emoluments in the present case. After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are inclined to uphold the point of view of the defendant. There is no question that the defendant acted as a de facto officer during the time he held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The emolument must go to the person who rendered service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in connection with the provisions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld. A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67; 32 Law ed. 65), decided by the Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of election, was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H. Page, and as a result the House of Representatives found that Pirce was not duly elected his seat vacant. An election was thereafter held to fill the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover the salary received by Price during his incumbency. The

Supreme Court ruled that he was not entitled to it holding that "one whose credentials showed that he was regularly elected a member of Congress, and who was sworn in and took his seat, and served, and drew his salary, was although his seat was contested, and subsequently he was declared by Congress not to have been elected, and this seat was declared vacant the predecessor of the person elected to fill the vacancy". This case, thought it arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the office to which he was later legally elected. Pirce was declared entitled to the salary and emoluments of the office. We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should follow the legal title to the office and should not depend and whether the duties of the office are discharged or not, knowing that it is predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and frequency of usurpation or intrusion into the office which defeat the will of the people. We are conscious that, if the rule is adopted, it would indeed have a wholesome effect in future elections and would serve as a deterring factor in the commission of frauds, violence and terrorism which at the times are committed in some sectors of our country to the detriment of public interest. But an examination of the cases relied upon by him, discloses that in some states, like Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri and Washington, the doctrine advocated is premised on express statutory by reason of usurpation, (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-224; 93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common law (Kreitz vs. Behrensmeyer, 24 A.L.R. 223-224). Under such predicament, it is indeed hard to see how we can extend here the force and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American common law as in force in these Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson, 18 Phil., 257, 262) while, on the other hand, there is nothing in our status which would authorize us to adopt the rule. For us to follow the suggestion of the plaintiff would be legislate by judicial ruling which is beyond the province of the Court. Nor are we justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.

Another reason that may be involved in opposition to the claim of the plaintiff is the principle of res judicata. It appears that plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral Tribunal, but when the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this silence may be interpreted as a denial of the relief. This is a matter which can be considered as an incident to the power and authority given to the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad et al. vs. Vera et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or ignore altogether, this important claim, the clear implication is that it deemed it unjustified. This matter, therefore, cannot now be passed upon in line with the doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541), wherein the Court, among other things, said; Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be questioned on this complaint. We recognize Locsin's right to receive and to retain the compensation because the Legislature voted it to him in spite of Mr. Kare's pending contest and claim to that compensation. The legislature's carries the corollary of Mr. Kare's lack of right to the same compensation. The Legislature might possibly have required reimbursement by Locsin had it been its intention to recognize Mr. Kare's claim to the same compensation; but not having done so, Locsin's superior right to this compensation is res judicata for the courts. (Kare vs. Locsin, 61 Phil., pp. 541, 546.) The same consideration may be made with regard to the claim for damages contained in the second cause of action of the complaint. Wherefore, the order appealed from is affirmed, with costs against the appellant. Bengzon, Montemayor, and Labrador, JJ., concur. Paras, C.J., concurs in the result. Separate Opinions PADILLA, J., concurring:

I concur in the affirmance of the order appealed from which dismissed the complaint, on the ground that the plea of usurpation by the defendant of the office to which the plaintiff was adjudged by the Proper Electoral Tribunal to be entitled is not an allegation of fact. Usurpation is per se unlawful. A de facto officers enters upon the performance of the duties and functions of an office under a close of authority or title. A candidate proclaimed elected to an office by the agency set up by law to make the proclamation cannot be deemed a usurper. Cases cited by the dissenter which told that a person entitled to an office as adjudged by the courts is also entitled to recover the fees collected and emoluments of and appertaining to the office from the ousted holder thereof, are either based on common law or upon express statutory provisions. In this jurisdiction the common law has never been applied and there is no statute which allows recovery of the salaries and emoluments received by or paid to an officer who later on is adjudged not to be entitled to the office. Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he would be answerable for damages. In that event the salary, fees and emoluments received by or paid to him during his illegal incumbency would be a proper item of recoverable damage. In the present case it is not pleaded that the defendant has committed such acts.

REGALA v. COURT OF FIRST INSTANCE OF BATAAN No. L-781, November 29, 1946 PABLO, M. A de facto officer is one who is in possession of the office and is discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer. If a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer.

G.R. No. L-23258

July 1, 1967

ROBERTO R. MONROY, petitioner, vs. HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent. E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner. Sycip, Salazar, Luna and Associates for respondents. BENGZON, J.P., J.: Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question. Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.
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This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of Appeals. Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do review a

resolution of the Commission on Elections. The submission is without merit. The Constitution empowers the Commission on Elections to x x x decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials x x x . 2 (Emphasis supplied) And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections," necessarily its adjudicatory or quasijudicial powers are likewise limited to controversies connected with the "conduct of elections." This phrase covers all the administrative process of preparing and operating the election machinery so that the people could exercise their right to vote at the given time.4 All questions and controversies that may arise therefrom are to be resolved exclusively by the Commission, subject to review only by the Supreme Court. However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question or controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's certificate of candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a controversy before the Commission, the same did not and could not possibly have anything to do with the conduct of elections. What the parties are actually controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections for the seat of Congressman for the first district of Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of municipal mayor or not. The only interest and for that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the running candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the certificate announcing his candidacy for

Congressman, as far as the Commission could be concerned, petitioner was no longer interested in running for that seat. The matter of his having forfeited his present position and the possible legal effect thereon by the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the cognizance of the courts. Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev. Election Code providing that Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy," makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196: x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable since the vacating is expressly made as of the moment of the filing of the certificate of candidacy x x x . (Emphasis supplied) Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere appears that the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals

expressly found as a fact that the certificate in question was filed with petitioner's knowledge and consent. And since the nature of the remedy taken by petitioner before Us would allow a discussion of purely legal questions only, such fact is deemed conceded.5 Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961. However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was subsequently ousted as a result of an election contest. These peculiar facts called for the application of an established precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest filed against him and can retain the compensation paid during his incumbency. But the case at bar does not involve a proclaimed elective official who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vicemayor because of the operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case can not therefore be applied in this case. It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title"6 that applies in the

present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers.7 The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office.8 Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner. So ordered.

G.R. No. 90762 May 20, 1991 LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. Zozimo G. Alegre for petitioner. The Provincial Attorney for respondents. RESOLUTION

GUTIERREZ, JR., J.:p This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero

inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary ViceGovernor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting ViceGovernor of Leyte. The pertinent portion of the resolution reads: WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law. WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances. RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of Leyte. (Rollo, p. 27) The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion. On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads:

This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vicegovernor is not necessary. We hold the view that the designation extended by the Secretary of Local Government in favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermore, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best interest of public service. On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31) In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states: In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended

to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting ViceGovernor, if he was deprived of such. (Rollo, p. 32) On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request. Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor. On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such.

The petitioner interposes the following reason for the allowance of the motion for reconsideration: THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICEGOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY. The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve. The arguments are of doubtful validity. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office . (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61) Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor,

continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate

the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting ViceGovernor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in

proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the twoyear period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the ViceGovernor. . . . By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in

extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for

reconsideration. The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him. SO ORDERED.